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Council on Environmental Quality
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Agricultural Marketing Service, USDA.
Final rule.
This rule revises the regulations governing the inspection and certification for fresh fruits, vegetables and other products by increasing by approximately 15 percent certain fees charged for the inspection of these products at destination markets. The fees for inspecting multiple lots of the same product during inspections will be increased from $14.00 to $45.00, and the per package fees for dock-side inspections will be changed from a three interval schedule, based on weight, to a two interval schedule based on different weight thresholds. These revisions are necessary in order to recover, as nearly as practicable, the costs of performing inspection services at destination markets under the Agricultural Marketing Act of 1946 (AMA of 1946). The fees charged to persons required to have inspections on imported commodities in accordance with the Agricultural Marketing Agreement Act of 1937 and for imported peanuts under section 1308 of the Farm Security and Rural Investigation Act of 2002.
January 15, 2004.
Rita Bibbs-Booth, USDA, 1400 Independence Ave., SW., Room 0640-S, Washington, DC 20250-0295, or call (202) 720-0391.
This rule has been determined to be “non-significant” for the purposes of Executive Order 12866. Therefore, it has not been reviewed by the Office of Management and Budget.
Also, pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. Accordingly, AMS has proposed this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. The action described herein is being taken for several reasons, including that additional user fee revenues are needed to cover the costs of: (1) Providing current program operations and services; (2) improving the timeliness with which inspection services are provided; and (3) improving the work environment.
AMS regularly reviews its user-fee financed programs to determine if the fees are adequate. The Fresh Products Branch (FPB) has and will continue to seek out cost saving opportunities and implement appropriate changes to reduce its costs. Such actions can provide alternatives to fee increases. However, even with these efforts, FPB's existing fee schedule will not generate sufficient revenues to cover program costs while maintaining the Agency mandated reserve balance. Current revenue projections for FPB's destination market inspection work during FY-03 are $12.0 million with costs projected at $18.3 million and an end-of-year reserve of $14.8 million. However, this reserve balance is due to appropriated funding received in October 2001, for infrastructure, workplace, and technological improvements. FPB's costs of operating the destination market program are expected to increase to approximately $18.9 million during FY-04 and to approximately $19.4 million during FY-05. The current fee structure with the infusion of the appropriated funding is expected to fund the terminal market inspection services until FY-2006, when FPB will fall below the Agency's mandated four-month reserve level.
This fee increase should result in an estimated $1.8 million in additional revenues per year (effective in FY 04, if the fees are implemented by October 1, 2003). This will not cover all of FPB's costs. FPB will need to continue to increase fees bi-yearly in order to cover the program's operating cost and maintain the required reserve balance. FPB believes that increasing fees incrementally is appropriate at this time. Additional fee increases beyond FY-2004 will be needed to sustain the program in the future.
Employee salaries and benefits are major program costs that account for approximately 80 percent of FPB's total operating budget. A general and locality salary increase for Federal employees, ranging from 4.02 to 4.87 percent depending on locality, effective January 2003, has significantly increased program costs. This salary adjustment will increase FPB's costs by over $700,000 per year. Increases in health and life insurance premiums, along with workers compensation will also increase program costs. Since FPB's last fee increase, many employees have converted to or were hired under the Federal Employees Retirement System (FERS), which has also contributed to the increase in program costs. In addition, inflation also impacts FPB's non-salary costs. These factors have increased FPB's costs of operating this program by over $600,000 per year.
Additional funds of approximately $155,000 are necessary in order for FPB to continue to cover the costs associated with additional staff and to maintain office space and equipment. Additional revenues are also necessary to improve the work environment by providing training and purchasing needed equipment. In addition, FPB began in 2001, developing (with appropriated funds) an automated system recently named the Fresh Electronic Inspection Reporting/Resource System (FEIRS) to replace its manual paper and pen inspection reporting process. Approximately $200,000 in additional funds are needed to complete the development and deployment of FEIRS, and it will take approximately $10,000 per month to maintain the system. This system has been put in place to enhance FPB's fruit and vegetable inspection processes.
This rule should increase user fee revenue generated under the destination
Currently, there are 14 commodities subject to 8e import regulations: Avocados, dates (other than dates for processing), filberts, grapefruit, kiwi fruit, olives (other than Spanish-style green olives), onions, oranges, potatoes, prunes, raisins, table grapes, tomatoes and walnuts. A current listing of the regulated commodities can be found under 7 CFR parts 944, 980, 996, and 999.
The destination market grading services are voluntary (except when required for imported commodities) and the fees charged to users of these services vary with usage. However, the impact on all businesses, including small entities, is very similar. Further, even though fees will be raised, the increase is not excessive and should not significantly affect these entities. Finally, except for those persons who are required to obtain inspections, most of these businesses are typically under no obligation to use these inspection services, and, therefore, any decision on their part to discontinue the use of the services should not prevent them from marketing their products.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. This rule will not preempt any state or local laws, regulations or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.
The AMA of 1946 authorizes official inspection, grading, and certification, on a user-fee basis, of fresh fruits, vegetables and other products such as raw nuts, Christmas trees and flowers. The AMA of 1946 provides that reasonable fees be collected from the users of the services to cover, as nearly as practicable, the costs of the services rendered. This rule would amend the schedule for fees and charges for inspection services rendered to the fresh fruit and vegetable industry to reflect the costs necessary to operate the program.
The Agricultural Marketing Service (AMS) regularly reviews its user-fee programs to determine if the fees are adequate. While the Fresh Products Branch (FPB) of the Fruit and Vegetable Programs, AMS, continues to search for opportunities to reduce its costs, the existing fee schedule will not generate sufficient revenues to cover program costs while maintaining the Agency mandated reserve balance. Current revenue projections for destination market inspection work during FY-03 are $12.0 million with costs projected at $18.3 million and an end-of-year reserve of $14.8 million. However, this reserve balance is due to appropriated funding received from Congress in October of 2001. These funds were established to build up the terminal market inspection reserve fund and for infrastructure improvements including development and maintenance of the inspector training center, workplace and technological improvements, including digital imaging and automation of the inspection process. However, by FY-07, without increasing fees, FPB's trust fund balance for this program will be below the agency mandated four-months of operating reserve (approximately $4.6 million) deemed necessary to provide an adequate reserve balance in light of increasing program costs. Further, FPB's costs of operating the destination market program are expected to increase to approximately $18.9 million during FY-04 and to approximately $19.4 million during FY 05. These cost increases (which are outlined below) will result from inflationary increases with regard to current FPB operations and services (primarily salaries and benefits), increased inspection demands, and the acquisition and maintenance of computer technology (
This rule should increase user fee revenue generated under the destination market program by approximately $1.8 million or 15 percent per year. While most of the fees will increase by approximately 15 percent, the fee for inspections of multiple lots of the same product during inspections, commonly referred to as “sublots,” would be increased from $14 to $45 because FPB's current fee does not nearly cover the costs of performing these inspections (between 30 to 35 percent of the destination market inspections conducted by FPB involve sublots). In addition, the per package rates for dock-side inspections would be increased and changed from a three interval schedule (based on package weight) to a two interval schedule (based on different weight thresholds). The two interval schedule would be simpler to administer and more appropriate given current packaging trends.
Employee salaries and benefits are major program costs that account for approximately 80 percent of FPB's total operating budget. A general and locality salary increase for Federal employees, ranging from 4.02 to 4.87 percent depending on locality, effective January 2003, has significantly increased program costs. This salary adjustment will increase FPB's costs by over $700,000 per year. Increases in health and life insurance premiums, along with workers compensation will also increase program costs. Since FPB's last fee increase, many employees have converted to or were hired under the Federal Employees Retirement System (FERS), which has also contributed to
Additional revenues (approximately $155,000) are necessary in order for FPB to continue to cover the costs associated with additional staff and to maintain office space and equipment. Additional revenues are also necessary to continue to improve the work environment by providing training and purchasing needed equipment. In addition, FPB began in 2001, developing (with appropriated funds) an automated system recently named the Fresh Electronic Inspection Reporting/Resource System (FEIRS) to replace its manual paper and pen inspection reporting process. Approximately $200,000 in additional revenue is needed to complete the development and deployment of FEIRS, and it will take approximately $10,000 per month to maintain the system. This system has been put in place to enhance FPB's fruit and vegetable inspection processes.
Based on the aforementioned analysis of this program's increasing costs, AMS to increase the fees for destination market inspection services. The following table compares current fees and charges with the fees and charges for fresh fruit and vegetable inspection as found in 7 CFR 51.38. This table also reflects the change to the per package fees for dock-side inspections that are currently on a three interval schedule based on weight, to a two interval schedule based on different weight thresholds. Unless otherwise provided for by regulation or written agreement between the applicant and the Administrator, the charges in the schedule of fees as found in § 51.38 are:
A notice of proposed rulemaking was published in the
The first comment was received from the Washington State Potato Commission (WSPC) opposed raising inspection fees at this time. WSPC asked “is it necessary to raise salaries” and the answer is yes. General and locality salary increases for Federal employees are mandated by Federal law. WSPC also recommended that FPB use its reserve funds. FPB is indeed utilizing its reserve fund to sustain the Federal market inspection program. However, if fees are not increased, the reserve fund would become depleted. The market inspection program reserve level is set by the Agency. A fee increase is necessary in order to prevent falling below the mandated four-month reserve level in FY-2007.
The second comment received from the California Grape and Tree Fruit League (CGTFL) did not oppose the proposed fee increase. CGTFL recommended that FPB make every effort to minimize costs and maximize the efficiency of the program, to maintain training programs for inspections and oversight, to make more inspection data available to the industry, and to seek input from the produce industry. FPB has been and remains committed to such recommendations. Further, FPB has and will continue to seek out cost saving opportunities within the program. Accordingly, in light of the continuing need to maintain the inspection program on a financially sound basis, the Agency has decided to proceed with the fee increase as set forth in the proposal.
Agricultural commodities, Food grades and standards, Fruits, Nuts, Reporting and recordkeeping requirements, Trees, Vegetables.
7 U.S.C. 1621-1627.
(a) When performing inspections of product unloaded directly from land or air transportation, the charges shall be determined on the following basis:
(1) Quality and condition inspections of products in quantities of 51 or more packages and unloaded from the same land or air conveyance:
(i) $99 for over a half carlot equivalent of an individual product;
(ii) $83 for a half carlot equivalent or less of an individual product;
(iii) $45 for each additional lot of the same product.
(2) Condition only inspection of products each in quantities of 51 or more packages and unloaded from the same land or air conveyance:
(i) $83 for over a half carlot equivalent of an individual product;
(ii) $76 for a half carlot equivalent or less of an individual product;
(iii) $45 for each additional lot of the same product.
(3) For quality and condition inspection and condition only inspection of products in quantities of 50 or less packages unloaded from the same conveyance:
(i) $45 for each individual product;
(ii) $45 for each additional lot of any of the same product. Lots in excess of carlot equivalents will be charged proportionally by the quarter carlot.
(b) When performing inspections of palletized products unloaded directly from sea transportation or when palletized product is first offered for inspection before being transported from the dock-side facility, charges shall be determined on the following basis:
(1) Dock side inspections of an individual product unloaded directly from the same ship:
(i) 2.5 cents per package weighing less than 30 pounds;
(ii) 3.8 cents per package weighing 30 or more pounds;
(iii) Minimum charge of $99 per individual product;
(iv) Minimum charge of $45 for each additional lot of the same product.
(2) [Reserved]
(c) When performing inspections of products from sea containers unloaded directly from sea transportation or when palletized products unloaded directly from sea transportation are not offered for inspection at dock-side, the carlot fees in paragraph (a) of this section shall apply.
(d) When performing inspections for Government agencies, or for purposes other than those prescribed in paragraphs (a) through (c) of this section, including weight-only and freezing-only inspections, fees for inspection shall be based on the time consumed by the grader in connection with such inspections, computed at a rate of $49 an hour:
(1) Charges for time shall be rounded to the nearest half hour;
(2) The minimum fee shall be two hours for weight-only inspections, and one-half hour for other inspections;
(3) When weight certification is provided in addition to quality and/or condition inspection, a one-hour charge shall be added to the carlot fee;
(4) When inspections are performed to certify product compliance for Defense Personnel Support Centers, the daily or weekly charge shall be determined by multiplying the total hours consumed to conduct inspections by the hourly rate. The daily or weekly charge shall be prorated among applicants by multiplying the daily or weekly charge by the percentage of product passed and/or failed for each applicant during that day or week. Waiting time and overtime charges shall be charged directly to the applicant responsible for their incurrence.
(e) When performing inspections at the request of the applicant during periods which are outside the grader's regularly scheduled work week, a charge for overtime or holiday work shall be made at the rate of $25.00 per hour or portion thereof in addition to the carlot equivalent fee, package charge, or hourly charge specified in this subpart. Overtime or holiday charges for time shall be rounded to the nearest half hour.
(f) When an inspection is delayed because product is not available or readily accessible, a charge for waiting time shall be made at the prevailing hourly rate in addition to the carlot equivalent fee, package charge, or hourly charge specified in this subpart. Waiting time shall be rounded to the nearest half hour.
Agricultural Marketing Service, USDA.
Final rule.
This rule amends the Agricultural Marketing Service (AMS) regulations by removing the cottonseed chemist licensing program and the related official cottonseed grading program. This regulation will update various commodity testing laboratory addresses and will adopt two information symbols in the form of approved AMS shields to indicate that products have been tested by AMS.
This rule is effective January 15, 2004.
James V. Falk, Docket Manager, USDA, AMS, Science and Technology, 1400 Independence Avenue, SW., Room 3521 South Agriculture Building, Mail Stop 0272, Washington, DC 20250-0272; telephone (202) 690-4089; fax (202) 720-4631, or e-mail:
On August 13, 2003, AMS published in the
This rule has been determined to be not significant for the purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget (OMB).
This rule has been reviewed under Executive Order 12988, Civil Justice
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
USDA licensed cottonseed chemist program service and official cottonseed grade determinations are provided to all businesses on a voluntary basis and user fees to administer the program are listed in 7 CFR part 96. Any decision to discontinue the use of the official cottonseed grading services (with a unit certificate fee) at private laboratories and obtain new contracts with their customers based upon unofficial grade of seed (without a fee) would not hinder the cottonseed industry members from marketing their products. Monthly published Marketing News reports for cottonseed are based entirely on summary information of the quality and quantity factors and grades obtained from all official certificates issued by licensed chemists. There has been no official cottonseed grade certificate issued from a licensed chemist since June 3, 1999. All cottonseed business since that date has been based on an unofficial cottonseed grade. User fee costs to entities would be proportional to their use of program services, so that costs are shared equitably by all users.
The last fee increases for the USDA Cottonseed Chemist Licensing Program services became effective on May 4, 1998 (63 FR 16370-16375). Since June 1999, no revenue has been available to administer the program and there has been a yearly increase in cost of living for the Federal employee salaries and benefits ($47,786) that comprise 72 percent of total program expenses. No program revenue is generated because there has been a shift in usage patterns on the part of the cottonseed industry for testing and grading services by chemists. The industry is now relying entirely on an unofficial cottonseed grade certification for their purchase and trade decisions.
Other miscellaneous and unsubstantial changes which would be made by the rule will not adversely affect users of the program services. The addition of two information symbols in the form of approved AMS shields and their inclusion in the regulations will not add further costs to users of the variety of AMS Science and Technology laboratory testing services.
Accordingly, the Agricultural Marketing Service has determined that this rule will not have a significant economic impact on a substantial number of small entities.
This rule does not contain any new information collection or record keeping requirements that are subject to the Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).
On August 9, 1993, AMS published a rule in the
The description of examination and licensure services provided in § 91.4 will be broadened to include other laboratory and testing licenses provided by the Science & Technology programs. In addition, since this final rule removes the Cottonseed Chemist Licensing Program then the limited description of services will no longer be applicable. Science & Technology Program laboratories and facilities have undergone modernization and consolidation since May 1998. In many instances the addresses of the locations changed in § 91.5. A major change was the October 2002 opening of the National Science Laboratory in Gastonia, North Carolina which now has biotechnology testing facilities.
On November 1, 1999 the USDA Office of Communications approved two information symbols in the form of AMS shields to be added to the USDA/AMS inventory and they are acceptable for use with AMS materials. The two approved AMS shields with the words “USDA AMS TESTED” and “USDA LABORATORY TESTED FOR EXPORT” will be added to the regulations in 7 CFR part 91. A major role of the Science and Technology program for the Agency is to perform analytical testing services of commodities. The approved AMS shields are designed to enhance the acceptance of AMS tested agricultural commodities on a national or international basis.
The licensed cottonseed chemist program and official grade certification are voluntary, user fee-funded services, conducted under the authority of the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1622, 1624). Under the current USDA program, chemists in private laboratories are licensed to analyze cottonseed in order to certify its quality, to access its lot potential for oil yield at seed crushing mills, and to determine the grade of official samples of cottonseed produced at cotton gins according to the rules, regulations and By-Laws of the National Cottonseed Products Association (NCPA). A representative lot of cottonseed for official grade determination is generally limited to a maximum of 150 tons for quality concerns. An official certificate is issued by the licensed chemist for each official cottonseed sample at a present unit fee of $3.18 to cover the costs of the USDA program.
The USDA licensed cottonseed chemist program originated on July 31, 1937 when a Bureau of the United States Department of Agriculture published a rule in the
The regulations in 7 CFR part 96 include in subpart A the details of the USDA cottonseed chemist licensing program (under the AMS Cotton Division's supervision for the last time in 1988) and the applicable user fees. In subpart B the method used to calculate official cottonseed grade was provided.
The current fees have been in effect since May 4, 1998 (63 FR 16370-16375). The fees include $1,166 for a chemist's license examination, $292 for a chemist's license renewal, a $3.18 fee per official cottonseed grade certificate issued, and a $60 fee for the review of the grading of an official lot of cottonseed. The number of official
The S&T programs are mainly voluntary, user fee services, conducted under the authority of the Agricultural Marketing Act of 1946, as amended. The Act authorizes the Department to provide analytical testing services that facilitate marketing and allow commodity products to obtain grade designations or meet marketing standards. In addition, the laboratory tests establish quality standards for the agricultural commodities. The Act also requires that reasonable and reimbursable fees be collected from users of the program services to cover, as nearly as practicable, the costs of the services rendered to maintain the program. At a May 1999 annual meeting, the National Cottonseed Products Association was provided an analysis of the services the Agency provides for the official cottonseed grade determination, and the revisions of fees that are needed to continue services to the extent commensurate with the actual costs. The industry expressed strong resistance to paying the increased costs needed to provide the official cottonseed grading service that includes official sampling expenses. It was their recommendation to eliminate the cottonseed chemist licensing program. In June 1999 the last official cottonseed grade certificate was issued and no revenue has been obtained from the USDA cottonseed chemist licensing program since that time to the present. The program has become a financial burden to AMS. The total obligatory cost to Science and Technology to carry the program forward to the full completion of fiscal year (FY) 2004 would be $65,939. This cost consists of $47,786 for salaries and benefits, $2,480 for USDA blind check sample preparation, $7,101 for travel, $3,575 for rent/utilities/communications, and $4,997 for administrative overhead. The Agency has no projected revenue to continue the program operation using the current user fee schedule. Hence, this rule will terminate the cottonseed chemist licensing program and will remove related official cottonseed grading from the regulations and associated fees. This rule removes 7 CFR part 96 in its entirety. Private or non-government laboratories will no longer be allowed to hold USDA cottonseed chemist licenses. There will be no need for persons to possess cottonseed sampler licenses or similar designations. All such former chemist and sampler licensees will be instructed and will be required to return their licenses to offices at AMS headquarters. Marketing News for official cottonseed grade will no longer be available.
This rule will also update various commodity testing laboratory addresses and will adopt approved AMS shields to indicate that products have been tested by AMS. The new shields will be placed in a new subpart together with appropriate definitions.
Administrative practice and procedure, Agricultural commodities, Laboratories, Reporting and recordkeeping requirements.
Administrative practice and procedure, Agricultural commodities, Laboratories, Reporting and recordkeeping requirements.
7 U.S.C. 1622, 1624.
(b)
(a) Services are offered to applicants at the Science and Technology field service laboratories and facilities in the following list:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(b) The addresses of the various laboratories and offices appear in the pertinent parts of this subchapter. A prospective applicant may obtain a current listing of addresses and telephone numbers of Science and Technology laboratories, offices, and facilities by addressing an inquiry to the Administrative Officer, Science and Technology, Agricultural Marketing Service, United States Department of Agriculture (USDA), 1400 Independence Ave., SW., Room 0725 South Agriculture Building, Mail Stop 0271, Washington, DC 20250-0271.
Two approved information symbols in the form of AMS shields are available to indicate official testing by an AMS laboratory. The two approved AMS shields with the words “USDA AMS TESTED” and “USDA LABORATORY TESTED FOR EXPORT” are added to the USDA symbol inventory to enhance the acceptance of AMS tested agricultural commodities on a national or international basis.
Words used in the regulations in this part in the singular form will import the plural, and vice versa, as the case may demand. As used throughout the regulations in this part, unless the context requires otherwise, the following terms will be construed to mean:
Two information symbols in the form of AMS shields indicate commodity testing at an AMS laboratory listed in § 91.5 of this part. The AMS shield set forth in figure 1 of this section, containing the words “USDA AMS TESTED”, and the shield set forth in figure 2, containing the words “USDA LABORATORY TESTED FOR EXPORT” have been approved by the USDA Office of Communications to be added to the USDA/AMS inventory of symbols. Each example of an AMS shield has a black and white background; however the standard red, white and blue colors are approved for the shields. They are approved for use with AMS materials. Shields with the same wording that are similar in form and design to the examples in figures 1 and 2 of this section may also be used.
Farm Service Agency, USDA.
Final rule.
This rule consolidates, clarifies and revises the servicing regulations for the Minor Programs currently administered by the Farm Service Agency, Farm Loan Programs (FSA). Minor Program loans involve existing loans only since there is no longer funding for new loans in these programs. FSA Minor Programs consist of the following loan types: Grazing Association loans and Irrigation and Drainage Association loans previously administered by the U.S. Department of Agriculture's Rural Development (RD) mission area, and Non-Farm Enterprise and Recreation Loans made to individuals previously administered by FSA. Recreation loans to associations will continue to be serviced by the RD mission area.
January 15, 2004.
Mel Thompson, Senior Loan Officer, Farm Service Agency; telephone: (202) 720-7862; Facsimile: (202) 690-1196; e-mail:
This rule consolidates and clarifies the servicing policies of the Farm Service Agency's Minor Loan Programs. The Minor Programs were administered by the former Farmers Home Administration (FmHA). Under the discretionary authority of the Department of Agriculture Reorganization Act of 1994, Public Law 103-354, on October 20, 1994, the Individual-type loans (Non-Farm Enterprise and Recreation loans) were assigned to FSA. The Association-type loans (Grazing Associations and Irrigation and Drainage loans) were assigned to the RD mission area. Regulations for servicing the Association-type loans of these programs were found at 7 CFR part 1901, subpart E for civil rights compliance; 7 CFR part 1951, subpart E for servicing; 7 CFR part 1951, subpart F for graduation; 7 CFR part 1956, subpart C for debt settlement; and 7 CFR part 1962 subpart A for bankruptcy. Individual-type Minor Program loans are the Non-Farm Enterprise loans defined in 7 CFR 1941.4 and 1943.4 and which are a subgroup of FSA, Farm Operating and Farm Ownership loans; and Recreation loans, which are defined as Farm Loan Program (FLP) loans under 7 CFR 1951.906. Although these loans are no longer made by FSA, they are serviced as FLP loans in accordance with 7 CFR part 1951, subpart S.
Because the current delegation of these similar loan programs between the FSA and RD mission area is inefficient, this rule removes parts of regulations that are currently shared by FSA and the agencies of the RD mission area and establishes a consolidated FSA regulation governing these programs. Information not specific to the Minor Programs has been eliminated and language has been improved for readability.
On April 9, 2003, the Farm Service Agency published a proposed rule (68 FR 17320) requesting comments regarding proposed consolidation and revision of the rules affecting the FSA Minor Programs. A comment was received from an Agency employee regarding servicing violations of non-compliance with civil rights laws by Minor Program borrowers. The commentor suggested that the Agency provide notices and try to correct the violation rather than going right into liquidation.
The Agency is adopting the comment. The Agency has clarified its civil rights compliance standards contained in § 772.3(a) and (d) since FSA's civil rights compliance procedures contained in Departmental regulations at 7 CFR 15.8 and internal Departmental Memorandum 4330-002, March 3, 1999, available on the Departmental website, also apply. The comment pertains only to association type loans (AMP) which are Federal financial assistance because the borrowers are the recipients of the Federal funding but are not the ultimate beneficiary of the program.
In addition, the Agency is clarifying its liquidation policy. Section 772.16 is revised to state that for Association-Type loans (AMP), the notice of acceleration will include appeal rights. For Individual-Type loans (IMP), § 772.16 states that all appeals must be exhausted before the notice of acceleration is issued; however, the notice of acceleration itself is not appealable. Thus, for both types of Minor Program loans, borrowers can dispute factual issues before liquidation. FSA has maintained the different timing for appealing adverse Agency decisions. AMP loans were previously serviced by the RD mission area under regulations providing for appeals in the notice of acceleration. IMP loans serviced by FSA before this rule are still considered Farm Loan Program (FLP) loans which by regulation require that all appeals precede acceleration.
This rule has been determined under Executive Order 12866 to be not significant and was not reviewed by the Office of Management and Budget.
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601, the Agency has determined that there will not be a significant economic impact on a substantial number of small entities. All Farm Service Agency direct loan borrowers and all entities affected by this rule are small businesses according to the North American Industry Classification System, and the United States Small Business Administration. There is no diversity in size of the entities affected by this rule and the costs to comply with it are the same for
There are currently 346 Minor Loan Program borrowers including 61 Grazing Associations, 39 Irrigation and Drainage Associations, 218 Non-Farm Enterprise loans, and 28 Recreations loans to individuals which total less than $22,000,000 in outstanding indebtedness. This rule consolidates the regulations governing these programs, but it contains no new requirements nor does it eliminate any provision in previous regulations. This rule does not limit options available to program participants, or change any aspect of the program that would have a significant effect on the business of these associations. Therefore, the costs of compliance resulting from this rule are deemed not significant. Accordingly, pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Agency certifies that this rule will not have a significant economic impact on a substantial number of small entities.
The environmental impacts of this rule have been considered in accordance with the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
This rule has been reviewed in accordance with E.O. 12988, Civil Justice Reform. In accordance with that Executive Order: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings in accordance with 7 CFR part 11 must be exhausted before requesting judicial review.
As stated in the Notice related to 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983) the programs and activities within this rule do not require consultation with state and local officials under the scope of Executive Order 12372.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, requires Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments or the private sector. This rule contains no Federal mandates, as defined by title II of the UMRA; therefore, this rule is not subject to sections 202 and 205 of the UMRA.
The policies contained in this rule do not have any substantial direct effect on 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. Nor does this rule impose any new significant loan servicing criteria on state and local governments. The rule revises the citation references and consolidates the servicing regulations to streamline loan servicing criteria applicable to Minor Programs. Therefore, consultation with the states is not required.
The amendments to 7 CFR parts 772, 1901, subpart E, and 1951, subparts E and F, contained in this rule only delete requirements and propose no new collections nor do they significantly affect the aggregate information collection burden of the Agencies. Still, this rule transfers some of the information collections that were approved under OMB control numbers 0575-0118, 0575-0093, and 0575-0066, to part 772, which has been approved by OMB and assigned control number 0560-0230.
These changes affect no programs listed in the Catalog of Federal Domestic Assistance.
Agriculture, Credit, Rural areas.
Civil rights, Compliance reviews, Minority groups.
Account servicing, Grant programs—housing and community development, Reporting requirements, Rural areas.
5 U.S.C. 301, 7 U.S.C. 1989, 25 U.S.C. 490.
(a)
(b)
(a)
(b)
(a)
(b)
(c)
(d)
Servicing activities such as transfers, assumptions, subordinations, sale or exchange of security property, and leasing of security will be reviewed for compliance with 7 CFR part 1940, subpart G and the exhibits to that subpart and 7 CFR part 799.
(a)
(b)
(c)
(1) For chattel security, service the account according to 7 part 1962, subpart A. If any normal income security as defined in that subpart secures a Minor Program loan, the reporting, approval and release provisions in that subpart shall apply.
(2) For real estate security for AMP loans, contact the Regional Office of General Counsel for advice on the appropriate servicing including liquidation if warranted.
(3) For real estate security for IMP loans, service the account according to 7 CFR part 1965, subpart A.
(a)
(1) The loan will still be adequately secured after the subordination, or the value of the loan security will be increased by the amount of advances to be made under the terms of the subordination.
(2) The borrower can document the ability to pay all debts including the new loan.
(3) The action does not change the nature of the borrower's activities to the extent that they would no longer be eligible for a Minor Program loan.
(4) The subordination is for a specific amount.
(5) The borrower is unable, as determined by the Agency, to refinance its loan and graduate in accordance with this subpart.
(6) The loan funds will not be used in such a way that will contribute to erosion of highly erodible land or conversion of wetlands for the production of an agricultural commodity according to 7 CFR part 1940, subpart G.
(7) The borrower has not been convicted of planting, cultivating, growing, producing, harvesting or storing a controlled substance under Federal or state law. “Borrower,” for purposes of this subparagraph, specifically includes an individual or entity borrower and any member of an entity borrower. “Controlled substance,” for the purpose of this subparagraph, is defined at 21 CFR part 1308. The borrower will be ineligible for a subordination for the crop year in which the conviction occurred and the four succeeding crop years. An applicant must attest on the Agency application form that it, and its members if an entity, have not been convicted of such a crime.
(b)
(1) The specific amount of debt for which a subordination is needed;
(2) An appraisal prepared in accordance with § 761.7 of this chapter, if the request is for a subordination of more than $10,000, unless a sufficient appraisal report, as determined by the Agency, that is less than one year old, is on file with the Agency; and
(3) Consent and subordination, as necessary, of all other creditors' security interests.
(a)
(1) Leasing is the only feasible way to continue to operate the enterprise and is a customary practice;
(2) The lease will not interfere with the purpose for which the loan was made;
(3) The borrower retains ultimate responsibility for the operation, maintenance and management of the facility or service for its continued availability and use at reasonable rates and terms;
(4) The lease prohibits amendments to the lease or subleasing arrangements without prior written approval from the Agency;
(5) The lease terms provide that the Agency is a lienholder on the subject property and, as such, the lease is subordinate to the rights and claims of the Agency as lienholder; and
(6) The lease is for less than 3 years and does not constitute a lease/purchase arrangement, unless the transfer and assumption provisions of this subpart are met.
(b)
(a) For AMP loans.
(1) Sale of all or a portion of the security property may be approved when all of the following conditions are met:
(i) The property is sold for market value based on a current appraisal prepared in accordance with § 761.7 of this chapter.
(ii) The sale will not prevent carrying out the original purpose of the loan. The borrower must execute an Assurance Agreement as prescribed by the Agency. The covenant involved will remain in effect as long as the property continues to be used for the same or similar purposes for which the loan was made. The instrument of conveyance will contain the nondiscrimination covenants contained in 7 CFR 1951.204.
(iii) The remaining security for the loan is adequate or will not change after the transaction.
(iv) Sale proceeds remaining after paying any reasonable and necessary selling expenses are applied to the Minor Program loan according to lien priority.
(2) Exchange of all or a portion of security property for an AMP loan may be approved when:
(i) The Agency will obtain a lien on the property acquired in the exchange;
(ii) Property more suited to the borrower's needs related to the purposes of the loan is to be acquired in the exchange;
(iii) The AMP loan will be as adequately secured after the transaction as before; and
(iv) It is necessary to develop or enlarge the facility, improve the borrower's debt-paying ability, place the operation on a more sound financial basis or otherwise further the loan objectives and purposes, as determined by the Agency.
(b) For IMP loans.
(1) A sale or exchange of chattel that is serving as security is governed by 7 CFR part 1962, subpart A.
(2) A sale or exchange of real estate that is serving as security for an IMP loan is governed by 7 CFR part 1965, subpart A.
(a)
(1) The debt is paid in full;
(2) Security property is sold for market value and sale proceeds are received and applied to the borrower's creditors according to lien priority; or
(3) An exchange in accordance with § 772.7(b) has been concluded.
(b)
(c)
(a)
(1) The present borrower is unable or unwilling to accomplish the objectives of the loan;
(2) The transfer will not harm the Government or adversely affect the Agency's security position;
(3) The transferee will continue with the original purpose of the loan;
(4) The transferee will assume an amount at least equal to the present market value of the loan security;
(5) The transferee documents the ability to pay the AMP loan debt as provided in the assumption agreement and has the legal capacity to enter into the contract;
(6) If there is a lien or judgment against the Agency security being transferred, the transferee is subject to such claims. The transferee must document the ability to repay the claims against the land; and
(7) If the transfer is to one or more members of the borrower's organization and there is no new member, there must not be a loss to the Government.
(b)
(1) The entire unpaid balance of the withdrawing member's share of the AMP loan must be assumed by the new member;
(2) In accordance with the Association's governing articles, the required number of remaining members must agree to accept any new member; and
(3) The transfer will not adversely affect collection of the AMP loan.
(c)
(1) The written consent of any other lienholder, if applicable.
(2) A current balance sheet and cash flow statement.
(d)
(e)
(1) The full amount of the loan is assumed; or
(2) Less than the full amount of the debt is assumed, and the balance remaining will be serviced in accordance with § 772.9(c).
Transfers and assumptions for IMP loans are processed in accordance with 7 CFR part 1962, subpart A, for chattel secured loans and 7 CFR part 1965, subpart A, for real estate secured loans. Any remaining transferor liability will be serviced in accordance with § 772.9(c) of this subpart.
(a)
(b)
(1) AMP loans shall be reviewed at least every two years. In the year to be reviewed, each borrower must submit, at a minimum, a year-end balance sheet and cash flow projection for the current year.
(2) All IMP borrowers classified as “commercial” or “standard” in accordance with 7 CFR part 1951, subpart F, shall be reviewed at least every 2 years. In the year to be reviewed, each borrower must submit a year-end balance sheet, actual financial performance for the most recent year, and a projected budget for the current year.
(c)
(1) Borrowers with IMP loans that are classified as “commercial” or “standard” must apply for private financing within 30 days from the date the borrower is notified of lender interest, if an application is required by the lender. For good cause, the Agency may grant the borrower a reasonable amount of additional time to apply for refinancing.
(2) Borrowers with AMP loans will be considered for graduation at least every two years or more frequently if the Agency determines that the borrower's financial condition has significantly improved.
(a)
(b)
The Agency may approve reamortization of AMP loans provided:
(a) There is no extension of the final maturity date of the loan;
(b) No intervening lien exists on the security for the loan which would jeopardize the Government's security position;
(c) If the account is delinquent, it cannot be brought current within one year and the borrower has presented a cash flow budget which demonstrates the ability to meet the proposed new payment schedule; and
(d) If the account is current, the borrower will be unable to meet the annual loan payments due to circumstances beyond the borrower's control.
(a) The Agency may approve, without regard to any loan or total indebtedness limitation, vouchers to pay costs, including insurance and real estate taxes, to preserve and protect the security, the lien, or the priority of the lien securing the debt owed to the Agency if the debt instrument provides that the Agency may voucher the account to protect its lien or security.
(b) The Agency may pay protective advances only when it determines it to be in the Government's best financial interest.
(c) Protective advances are immediately due and payable.
When the Agency determines that continued servicing will not accomplish the objectives of the loan and the delinquency or financial distress cannot be cured by the options in § 772.13, or the loan is in non-monetary default, the borrower will be encouraged to dispose of the Agency security voluntarily through sale or transfer and assumption in accordance with this part. If such a transfer or voluntary sale is not carried out, the loan will be liquidated according to 7 CFR part 1955, subpart A. For AMP loans, appeal rights under 7 CFR part 11 are provided in the notice of acceleration. For IMP loans, appeal rights must be exhausted before acceleration, and the notice of acceleration is not appealable.
With respect to any aspect of a credit transaction, the Agency will comply with the requirements of the Equal Credit Opportunity Act as implemented in 7 CFR 1910.2, and the Department's civil rights policy in 7 CFR part 15d.
Exceptions to any requirement in this subpart can be approved in individual cases by the Administrator if application of any requirement or failure to take action would adversely affect the Government's financial interest. Any exception must be consistent with the authorizing statute and other applicable laws.
5 U.S.C. 301; 7 U.S.C. 1989; 42 U.S.C. 1480.
5 U.S.C. 301; 7 U.S.C. 1932 note; 7 U.S.C. 1989; 42 U.S.C. 1480.
Agricultural Marketing Service, USDA.
Final rule.
This final rule amends the Soybean Promotion and Research Rules and Regulations (Rules and Regulations) established under the Soybean Promotion, Research, and Consumer Information Act (Act) by requiring first purchasers of soybeans and producers marketing processed soybeans or soybean products of a producer's own production in the States or regions of Delaware, Louisiana, South Carolina, Texas, Eastern Region, and the Western Region, to remit and report assessments on a quarterly basis rather than a monthly basis. This change reduces the administrative costs of monthly reporting imposed on these smaller soybean producing States and regions.
April 1, 2004.
Kenneth R. Payne, Chief; Marketing Programs Branch; Livestock and Seed Program; Agricultural Marketing Service (AMS), USDA, Room 2638-S; STOP 0251; 1400 Independence Avenue, SW., Washington, DC 20250-0251; telephone 202/720-1115.
The Office of Management and Budget (OMB) has waived the review process required by Executive Order 12866 for this action.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have a retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under § 1971 of the Act, a person subject to the Soybean Promotion and Research Order (Order) may file a petition with the Department of Agriculture (Department) stating that the Order, any provision of the Order, or any obligation imposed in connection with the Order, is not in accordance with law and requesting a modification of the Order or an exemption from the Order. The petitioner is afforded the opportunity for a hearing on the petition. After a hearing, the Department would rule on the petition. The Act provides that the district courts of the United States in any district in which such person is an inhabitant, or has their principal place of business, has jurisdiction to review the Department's ruling on the petition, if a complaint for this purpose is filed within 20 days after the date of the entry of the ruling. Further, section 1974 of the Act provides, with certain exceptions, that nothing in the Act may be construed to preempt or supersede any other program relating to soybean promotion, research, consumer information, or industry information organized and operated under the laws of the United States or any State. One exception in the Act concerns assessments collected by Qualified State Soybean Boards (QSSBs). The exception provides that to ensure adequate funding of the operations of QSSBs under the Act, no State law or regulation may limit or have the effect of limiting the full amount of assessments that a QSSB in that State may collect, and which is authorized to be credited under the Act. Another exception concerns certain referenda conducted during specified periods by a State relating to the continuation or termination of a QSSB or State soybean assessment.
AMS has determined that this final rule will not have a significant impact on a substantial number of small entities as defined by the Regulatory Flexibility Act (5 U.S.C. 601
In accordance with the Paperwork Reduction Act of 1990 (44 U.S.C. chapter 35), the reporting and recordkeeping requirements included in 7 CFR part 1220 were previously approved by OMB and were assigned OMB control number 0581-0093. The purpose of this rule is to change the remitting and reporting of assessments to a quarterly basis from a monthly basis in four soybean producing States and two regions. There are a minimal number of first purchasers and producers in these four States and two regions. This change will not substantially impact the overall total burden hours. As a result, no change to the previously submitted burden estimate is necessary.
The Act (7 U.S.C. 6301-6311) provides for the establishment of a coordinated program of promotion and research designed to strengthen the soybean industry's position in the marketplace, and to maintain and expand domestic and foreign markets and uses for soybeans and soybean products. The program is financed by an assessment of 0.5 of 1 percent of the net market price of soybeans sold by producers. The final Order establishing a soybean promotion, research, and consumer information program was published in the July 9, 1991, issue of the
The Soybean Promotion and Research Rules and Regulations, 7 CFR part 1220, published in the
The Board, in conjunction with the affected States and regions,
This rule will assist these smaller soybean producing States and regions (listed above) in reporting and remitting their assessments to the Board. The Board has decided that the current requirement to remit and report assessments on a monthly basis is no longer necessary given the minimal number of first purchasers and total remitters from these smaller soybean producing States and regions. Allowing these States and regions to become quarterly remitters would reduce their administrative costs. It is estimated that administrative costs will be reduced by approximately $10,000 if first purchasers of soybeans and producers marketing processed soybeans and soybean products of a producer's own production in the States and regions of Delaware, Louisiana, South Carolina, Texas, the Eastern Region, and the Western Region remit and report assessments on a quarterly basis. Producers that market soybeans to first purchasers will continue to pay the assessment at the time of settlement. Due to the minimal number of first purchasers and total remittances in these States and regions, allowing the States or regions to remit quarterly will be beneficial to the States, regions, and the Board by reducing the administrative costs of collecting assessments.
On June 18, 2003, the Department published in the
The proposed rule was published with a request for comments to be submitted by July 18, 2003. The Department received one comment, in a timely manner, from an individual who did not support the program in general. This commenter further questioned the impact of the proposal on assessments. In the proposal, we noted that the rule would assist smaller soybean producing States and regions in reporting and remitting their assessments to the Board. We concluded that allowing the States or regions to remit quarterly would be beneficial to the States, regions, and the Board by reducing the administrative costs of collecting assessments. As such this action should impact assessments favorably.
Based on the Board's recommendation, in conjunction with the affected States and regions, and no substantive comments, AMS is changing the period for remitting and reporting assessments for the following States or regions from a monthly basis to a quarterly basis: Delaware, Louisiana, South Carolina, Texas, Eastern Region, and the Western Region.
This rule will become effective April 1, 2004.
Administrative practice and procedure, Advertising, Agricultural research, Marketing agreements, Soybeans and soybean products, Reporting and recordkeeping requirements.
7 U.S.C. 6301-6311.
(b) * * *
Farm Service Agency, USDA.
Final rule; correction.
This document corrects a final rule published September 25, 2003, which provided disaster set-aside more quickly to those who can most benefit from the program. This document is necessary to correct an editorial mistake relating to the amount which may be set aside.
This rule is effective on December 16, 2003.
Michael Cumpton, Farm Loan Programs, Loan Servicing and Property Management Division, United States Department of Agriculture, Farm Service Agency, STOP 0523, 1400 Independence Avenue, SW., Washington, DC 20250-0523, telephone (202) 690-4014; electronic mail:
This document corrects a final rule which amended 7 CFR part 1951 published in the
(b) * * *
(3) The amount set-aside may not exceed the amount of the first or second scheduled annual installment due after the disaster occurred.
Bureau of Economic Analysis, Commerce.
Final rule.
This final rule amends 15 CFR 801.9 to set forth the reporting requirements for the BE-85, Quarterly Survey of Financial Services Transactions Between U.S. Financial Services Providers and Unaffiliated Foreign Persons.
The BE-85 survey will be conducted by the Bureau of Economic Analysis (BEA), U.S. Department of Commerce, under the International Investment and Trade in Services Survey Act, and under Section 5408 of the Omnibus Trade and Competitiveness Act of 1988. The first survey conducted under this rule will cover transactions in the first quarter of 2004. Data from the BE-85 survey are needed to monitor trade in financial services, analyze its impact on the U.S. and foreign economies, compile and improve the U.S. economic accounts, support U.S. commercial policy on financial services, conduct trade promotion, improve the ability of U.S. businesses to identify and evaluate market opportunities, and for other Government uses.
The survey will cover the same financial services presently covered by the BE-82, Annual Survey of Financial Services Transactions Between U.S. Financial Services Providers and Unaffiliated Foreign Persons, which the BE-85 survey would replace, following a final annual data collection for 2003.
This final rule will be effective January 15, 2004.
Obie G. Whichard, Chief, International Investment Division (BE-50), Bureau of Economic Analysis, U.S. Department of Commerce, Washington, DC 20230; or via the Internet at
In the August 29, 2003,
The Bureau of Economic Analysis (BEA), U.S. Department of Commerce, will conduct the survey under the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108), and under Section 5408 of the Omnibus Trade and Competitiveness Act of 1988 (15 U.S.C. 4908). Section 4(a) of the Act (22 U.S.C. 3103(a)) provides that the President shall, to the extent he deems necessary and feasible, conduct a regular data collection program to secure current information related to international investment and trade in services and publish for the use of the general public and United States Government agencies periodic, regular, and comprehensive statistical information collected pursuant to this subsection. In Section 3 of Executive Order 11961, as amended by Executive Order 12518, the President delegated authority granted under the Act as concerns international trade in services to the Secretary of Commerce, who has redelegated that authority to BEA.
The major purposes of the survey are to monitor trade in financial services, analyze its impact on the U.S. and foreign economies, compile and improve the U.S. economic accounts, support U.S. commercial policy on financial services, conduct trade promotion, and improve the ability of U.S. businesses to identify and evaluate market opportunities.
BEA will conduct the BE-85 survey on a quarterly basis beginning with the first quarter of 2004. BEA will send the survey to potential respondents in March of 2004. Responses will be due by May 15, 2004. The survey will update the data provided on the universe of financial services transactions between U.S. financial services providers and unaffiliated foreign persons. Reporting is required from U.S. financial services providers whose sales of covered services to unaffiliated foreign persons exceeded $20 million for the previous fiscal year or that expect such sales to exceed that amount during the current fiscal year, or whose purchases of covered services from unaffiliated foreign persons exceeded $15 million for the previous fiscal year or that expect such purchases to exceed that amount during the current fiscal year. Financial services providers meeting any of these criteria must supply data on the amount of their sales or purchases for each covered type of service, disaggregated by country. U.S. financial services providers that do not meet the mandatory reporting requirements are requested to provide voluntary estimates of their total sales or purchases of each type of financial service.
This final rule is not significant for purposes of E.O. 12866.
This final rule does not contain policies with Federalism implications as that term is defined in E.O. 13132.
The collection of information required in this final rule has been approved by the Office of Management and Budget under the Paperwork Reduction Act.
Notwithstanding any other provisions of the 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 requirements of the Paperwork Reduction Act unless that collection displays a currently valid OMB Control Number; such a Control Number (0608-0065) will be displayed.
The BE-85 survey is expected to result in the filing of reports containing mandatory data from about 55 respondents on a quarterly basis, or 220 responses annually. The average burden for completing the BE-85 is estimated to be 10 hours. Thus, the total respondent burden of the survey is estimated at 2,200 hours (220 responses times 10 hours average burden). The actual burden will vary from reporter to
Comments are requested concerning: (a) 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; (b) the accuracy of the burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Comments should be addressed to: Director, Bureau of Economic Analysis (BE-1), U.S. Department of Commerce, Washington, DC 20230; or faxed (202-395-7245) or e-mailed (
The Chief Counsel for Regulation, Department of Commerce, has certified to the Chief Counsel for Advocacy, Small Business Administration, under provisions of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the proposed rule would not have a significant economic impact on a substantial number of small entities. A summary of the factual basis for this cert was published in the proposed rule and is not repeated here. No comments were received on the economic impact of the rule. As a result, no final regulation flexibility analysis was prepared.
Economic statistics, Foreign trade, International transactions, Penalties, Reporting and recordkeeping requirements.
5 U.S.C. 301; 15 U.S.C. 4908; 22 U.S.C. 3101-3108; E.O. 11961, 3 CFR, 1977 Comp., p. 86 as amended by E.O. 12013, 3 CFR, 1977 Comp., p. 147, E.O. 12318, 3 CFR, 1981 Comp., p. 173, and E.O. 12518, 3 CFR, 1985 Comp., p. 348.
(c)
(4) BE-85, Quarterly Survey of Financial Services Transactions Between U.S. Financial Services Providers and Unaffiliated Foreign Persons:
(i) A BE-85, Quarterly Survey of Financial Services Transactions Between U.S. Financial Services Providers and Unaffiliated Foreign Persons, will be conducted covering the first quarter of the 2004 calendar year and every quarter thereafter.
(A)
(
(
(
(B)
(C)
(ii) [Reserved]
Federal Energy Regulatory Commission.
Final rule; correction.
The Federal Energy Regulatory Commission is correcting the final rule concerning the process for hydroelectric licensing under the Federal Power Act that was published on August 25, 2003.
October 24, 2003.
John Clements, 202-502-8070.
The final rule published on August 25, 2003, at 68 FR 51070 is corrected as follows:
Food and Drug Administration, HHS.
Notice of availability of guidance.
The Food and Drug Administration (FDA) is announcing the availability of a guidance entitled “Prior Notice of Imported Food, Questions and Answers.” The guidance responds to various questions raised about the section 307 of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (the Bioterrorism Act) and the agency's implementing regulations that require, beginning on December 12, 2003, prior notice to FDA before food is imported or offered for import into the United States.
Submit written or electronic comments on the agency guidance at any time.
Submit written requests for single copies of the guidance to the Prior Notice Help Desk, phone 1-800-216-7331 or 301-575-0156, or Fax 301-210-0247. See the
Submit written comments on the guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Domenic Veneziano, Office of Regulatory Affairs (HFC-100), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 781-596-7785.
In the
FDA is issuing the guidance entitled “Prior Notice of Imported Food, Questions and Answers” as a Level 1 guidance. Consistent with FDA's good guidance practices regulation (21 CFR 10.115), the agency will accept comment, but it is implementing the guidance document immediately, in accordance with § 10.115(g)(2), because the agency has determined that prior public participation is not feasible or appropriate. FDA is under a strict statutory deadline in which to implement these regulations.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at
Coast Guard, DHS.
Notice of revised agency policy.
The Coast Guard is expanding the scope of its Notice of Violation (NOV) program for resolving civil penalty cases as provided for in 33 CFR part 1, subpart 1.07. The Coast Guard will issue a revised policy expanding use of the NOV program to all statutory penalty provisions that the Coast Guard is authorized to enforce, and raising the maximum for proposed penalties under the NOV program to $10,000.
This revised policy is effective on January 5, 2004.
For further information on the use of the NOV program contact one of the persons listed below. For general questions, contact LCDR Scott Budka (G-MOA) U.S. Coast Guard by telephone at (202) 267-2026 or by electronic mail at
The Notice of Violation (NOV) program was implemented in 1995 to address the Coast Guard's concern that the civil penalty assessment process was too lengthy when applied to small (under 100 gallons) oil discharges and minor pollution prevention regulation violations (33 CFR parts 154, 155 and 156). The lengthy process time meant that a party frequently would have additional violations before being notified by a Hearing Officer of the initiation of action for the first violation. Early resolution of these minor violations saved time and reduced costs of internal reviews, improved deterrence, and facilitated corrective action by providing a party with earlier notice of violations.
In the Final Rule implementing the NOV program (59 FR 66482, Dec 27, 1994) we stated, “The NOV option can be used by other Coast Guard programs that use the civil penalty process. Any program that implements use of the NOV option will do so by internal policy with prior notification to the public in the
Since the NOV program's implementation, the Coast Guard has issued on average 2,300 NOVs annually for small oil spills and minor pollution prevention regulation violations. 95 percent of those NOVs were accepted by the responsible party, paid and the case closed. Because of the success of the initial limited NOV program, it is being expanded to include oil spills of 1,000 gallons or less and to include violations of other laws and regulations that the Coast Guard enforces.
An NOV may not be issued when the total proposed penalty for a violation exceeds $10,000. All laws and regulations that the Coast Guard enforces which contain a civil penalty provision are eligible for inclusion in the NOV program. Coast Guard issuing officers will issue a Notice of Violation with a proposed penalty only in clear-cut cases as determined by applying specific written guidance contained in a Commandant Directive, an internal Coast Guard policy document. A penalty schedule based on objective criteria will form an enclosure to the above Commandant Directive. Any case in which aggravating or extenuating circumstances are evidenced, or which concern violations not included in specific guidance documents, may be referred to the Hearing Officer for processing under the Coast Guard's current procedures as detailed in 33 CFR part 1, subpart 1.07.
This expansion will not change the alleged violator's options concerning the NOV as detailed in 33 CFR 1.07-11. The party has the option of paying the proposed penalty and closing the case or declining the NOV. If the NOV is declined, the case is processed as a Class I Administrative Civil Penalty and adjudicated by the Coast Guard Hearing Office. If the party fails to pay or decline the NOV within 45 days of receipt, the NOV is considered in default, the proposed penalty is considered assessed, and the case is forwarded to Commander, Maintenance & Logistics Command Pacific, Claims and Litigations (Collections) for collection of the penalty.
The NOV process does not preclude the Coast Guard from exercising its authority to utilize any other penalty, enforcement, control, or compliance measures authorized by law.
Coast Guard, DHS.
Interim final rule; notice of approval of revised collection of information.
On October 3, 2003, the Coast Guard published an interim final rule in the
OMB approved the revised collection of information 1625-0105 on November 3, 2003.
For information regarding this document, or if you have questions on viewing or submitting material to the docket, write or call Commander (CDR) Jerry Torok or Lieutenant (LT) Kevin Lynn, Project Managers for the Eighth Coast Guard District Commander, Hale Boggs Federal Bldg., 501 Magazine Street, New Orleans, LA 70130, telephone (504) 589-6271.
On October 3, 2003, the Coast Guard published an interim final rule entitled “Regulated Navigation Area; Reporting Requirements for Barges Loaded with Certain Dangerous Cargoes, Inland Rivers, Eighth Coast Guard District” in the
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Interim rule.
This interim rule lists communities where modification of the Base (1% annual-chance) Flood Elevations (BFEs) is appropriate because of new scientific or technical data. New flood insurance premium rates will be calculated from the modified BFEs for new buildings and their contents.
These modified BFEs are currently in effect on the dates listed in the table below and revise the Flood Insurance Rate Map(s) in effect prior to this determination for the listed communities.
From the date of the second publication of these changes in a newspaper of local circulation, any person has ninety (90) days in which to request through the community that the Mitigation Division Director of the Emergency Preparedness and Response Directorate reconsider the changes. The modified BFEs may be changed during the 90-day period.
The modified BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Doug Bellomo, P.E., Hazard Identification Section, Emergency Preparedness and Response Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2903.
The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.
Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.
The modifications are made pursuant to Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).
These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.
The changes in BFEs are in accordance with 44 CFR 65.4.
Flood insurance, Floodplains, Reporting and record keeping requirements.
42 U.S.C. 4001
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Final rule.
Base (1% annual-chance) Flood Elevations and modified Base Flood Elevations (BFEs) are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the FIRM is available for inspection as indicated in the table below.
The final base flood elevations for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Doug Bellomo, P.E., Hazard Identification Section, Emergency Preparedness and Response Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-2903.
The Federal Emergency Management Agency makes the final determinations listed below of BFEs and modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.
This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and 44 CFR Part 67.
The Federal Emergency Management Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM
The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and record keeping requirements.
42 U.S.C. 4001
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule and technical correction.
NMFS is issuing a final rule to prohibit fishing with drift gillnets in the California/Oregon (CA/OR) thresher shark/swordfish drift gillnet fishery in U.S. waters off southern California in waters east of the 120°W., for the months of June, July, and August, when the Assistant Administrator for Fisheries (AA) publishes a notice that El Nino conditions are forecasted or present off southern California. NMFS
This final rule is effective January 15, 2004.
Copies of the Environmental Assessment/Regulatory Impact Review (EA/RIR) and biological opinion (BO) are available on the internet at
Cathy Campbell, NMFS, Southwest Region, Protected Resources Division, (562) 980-4060.
All sea turtles that occur in U.S. waters are listed as either endangered or threatened under the Endangered Species Act (ESA). The loggerhead turtle (
On October 24, 2000 (65 FR 64670, October 30, 2000), NMFS issued a permit, for a period of 3 years, to authorize the incidental, but not intentional, taking of four stocks of threatened or endangered marine mammals (Fin whale, California/Oregon/Washington stock; Humpback whale, California/Oregon/Washington-Mexico stock; Steller sea lion, eastern stock; and Sperm whale, California/Oregon/Washington stock) by the CA/OR drift gillnet fishery under section 101(a)(5)(E) of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1371(a)(5)(E)).
NMFS completed a formal consultation to authorize this incidental take of marine mammals listed under the ESA, as required by section 7 of the ESA. This consultation also included an analysis of the effects of the CA/OR drift gillnet fishery on loggerhead turtles. On October 23, 2000, NMFS issued a BO in which it determined that the then current operations of the CA/OR drift gillnet fishery were likely to jeopardize the continued existence of loggerhead turtles.
To avoid the likelihood of the CA/OR drift gillnet fishery jeopardizing the continued existence of loggerhead turtles, NMFS developed a Reasonable and Prudent Alternative (RPA) in the BO that consists of prohibiting CA/OR drift gillnet vessels from fishing in U.S. waters off southern California east of the 120°W. (in the area bounded by the California coastline to the north and east, the U.S.- Mexico border to the south, and the 120° W to the west), from August 15 through August 31, and January 1 through January 31, during a forecasted, or occurring, El Nino event. This measure would reduce the likelihood of the CA/OR drift gillnet fishery incidentally entangling loggerhead turtles by 71 percent. On September 20, 2002, NMFS published a proposed rule (67 FR 59243) to implement this RPA to protect loggerhead turtles. On December 24, 2002, NMFS published an interim final rule (67 FR 78388) that implemented the RPA to protect loggerhead turtles and solicited public comment on an alternative closure during the months of June, July, and August. In response to a request from the public to provide more time to review the loggerhead turtle entanglement data and the sea surface temperature data, NMFS extended the comment period from February 7, 2003, to March 24, 2003 (68 FR 7080, February 12, 2003).
The measures in this final rule are based in part on comments received on the proposed (see 67 FR 78388 December 24, 2002, for comments and responses) and interim final rules. NMFS received ten comments on the interim final rule. NMFS reviewed and considered all comments received in the development of this rule.
NMFS' analysis of observer and fishing effort data shows that a closure during August 16-31 during El Nino conditions would not provide adequate protection to loggerhead turtles as required by the October 2000 BO. The closure (i.e., August 16-31 and January) required by the October 2000 BO is expected to result in the estimated reduction in take of 6 loggerhead turtles during El Nino years. A closure limited to the period of August 16-31 during El Nino years is expected to only result in a reduction in the estimated take of 3 to 4 loggerhead turtles. Thus, NMFS has determined that a closure during August 16-31 during El Nino years will not provide the level of protection required under the October 2000 BO. As discussed in the response to Comment 2, NMFS is implementing a closure during June, July, and August during El Nino conditions in order to provide greater protection to loggerhead turtles than the RPA in the October 2000 BO while causing less economic burden to the CA/OR thresher shark/swordfish drift gillnet fishery.
The Pacific Offshore Cetacean Take Reduction Team recommended that NMFS implement a closure in June, July, and August, rather than during January and August 15 through 31, to reduce entanglement of loggerhead turtles. NMFS outlined this proposal in the interim final rule (67 FR 78388, December 24, 2002) and solicited comments on this alternative. As discussed in the previous section, NMFS received several additional comments on the interim final rule that favored the implementation of this alternative.
In response to these comments, NMFS conducted a review of observer data to determine whether an alternate closure in June, July, and August would offer the same or better protection than the closure during January 1 through 31 and August 15 through 31. The data used for this analysis are summarized in Table 1. NMFS reviewed observer data from the two most recent El Nino events (1992/1993 and 1997/1998) for the number of observed sets and the number of observed entanglements of loggerhead turtles that occurred during the months of January, June, July, and August, and used these data to calculate the average interaction rate for each of the two time periods. Future effort in the fishery for the two time periods was estimated by averaging fishing effort from 1999 through 2001. Using these data, NMFS estimated the number of loggerhead turtle entanglements that are expected to occur during each of the two time periods.
As illustrated in Table 1, the loggerhead turtle interaction rate is higher during June, July, and August (0.09 entanglements per set) than during January and August 15 through 31 (0.02 entanglements per set). However, the expected fishing effort, based on the average fishing effort from 1999-2001, is much lower in June, July, and August (76 sets) than during January and August 15 through 31 (252 sets). NMFS estimates that an average of 7 turtles would be taken during June, July, and August during El Nino conditions. By comparison, NMFS estimates that an average of 6 turtles would be taken during January and August 15 through 31. Thus, because of the higher entanglement rate during the June/July/August period, NMFS expects that a closure during this period will provide more protection to loggerhead turtles than a closure during January and August 15-31.
NMFS conducted an analysis to ensure that the June, July, and August closure period would avoid jeopardy for loggerhead turtles. The Incidental Take Statement in the 2000 BO stated that an observed take of 1 loggerhead turtle per El Nino year, extrapolated to an estimated mortality of 2 loggerhead turtles per El Nino year, would avoid jeopardy. NMFS' analysis of the June, July, and August closure period indicated that 6 loggerhead sea turtles would be captured per El Nino year outside of the closure period (e.g., September through May). Assuming that 32 percent of the captured loggerhead turtles would be killed (based on the survival rate of hard-shelled turtles caught by the CA/OR drift gillnet fleet from 1990-2000), NMFS estimated that 2 loggerhead turtles would be killed per El Nino year from September through May. Therefore the incidental mortality of loggerhead turtles that would be expected to occur with implementation of the June, July, and August closure period is consistent with the Incidental Take Statement and avoids jeopardy for loggerhead turtles.
As a result of this analysis, NMFS has concluded that implementation of the alternate closure in June, July, and August complies with the ESA because it provides at least the same level (and is expected to be greater) protection as the RPA identified in the BO.
In order to determine whether El Nino conditions are present for the purposes of implementing this rule, NMFS is using the criteria outlined in the interim final rule (67 FR 78388, December 24, 2002). These criteria are outlined below.
For years in which an El Nino event has been declared by the NOAA Climate Prediction Center, NMFS uses the sea surface temperature anomaly charts available on the NOAA Coastwatch West Coast Regional Node web page at
All loggerhead turtles observed entangled in the CA/OR drift gillnet fishery during El Nino events were entangled during months in which the sea surface temperatures ranged from approximately 60°F to 72°F (15.6°C to 22.2°C) and sea surface temperatures differed from the average by approximately 0°F to +4°F (0°C to +2.2°C). The sea surface temperature during the month preceding each observed loggerhead entanglement was either greater than normal or equal to the normal sea surface temperature. The sea surface temperature during the third month and second month prior to each entanglement during an El Nino event was always greater than the normal sea surface temperature for that month. NMFS believes this is because warmer sea surface temperatures are necessary for loggerhead turtles to move into the area. There have been no observed entanglements in this fishery in which any one of the preceding 3 months were colder than normal.
Based on this information, the need to allow sufficient lead time to publish a notice in the
Although the process for determining whether El Nino conditions are present for the purposes of implementing this rule was not set forth in the regulatory text of the interim final rule, it was outlined in the preamble to the interim final and comments were solicited on these criteria. NMFS has decided to make these criteria permanent by including them in the regulatory text of this final rule.
NMFS has determined that El Nino conditions were neither forecasted nor present off southern California for purposes of implementing the time and area closure for June, July, and August 2003. This determination was based on the March, April, May, and June monthly sea surface temperature anomaly charts as well as actual sea surface temperatures. Based on the criteria outlined above, sea surface temperatures in both the third and second months prior to the closure would need to be warmer than normal in order to trigger the implementation of the closure. Sea surface temperature anomaly charts for March, May, and June 2003 show ocean waters off southern California to be normal to 0.9°F (0.5°C) cooler than normal. Thus, the U.S. waters off southern California, east to 120°W remained open to drift gillnet fishing in June, July, and August 2003.
NMFS has determined that El Nino conditions are neither forecasted nor present off southern California for purposes of implementing a January 2004, time and area closure pursuant to
In this final rule, NMFS is adding regulatory text to § 223.206(d)(6)(i) that establishes a Leatherback Conservation Area. That regulatory text was originally implemented through an August 24, 2001 (66 FR 44549) interim final rule but was inadvertently deleted from the Code of Federal Regulations because of faulty regulatory instructions in the December 2002 interim final rule.
NMFS prepared an EA (August 13, 2001), a supplement to the EA for the interim final rule (December 2002), and a revised supplement to the EA/RIR for this final rule and concluded that these regulations would have no significant impact on the human environment. For a description of the initial Regulatory Flexibility Analysis and a detailed economic analysis of the CA/OR drift gillnet fishery, readers should refer to the August 13, 2001, EA prepared for the proposed rule.
The economic analysis conducted for this final rule anticipates an impact of approximately 16 CA/OR drift gillnet vessel owners and operators, representing approximately 76 fishing sets annually. The total gross revenue loss to the CA/OR drift gillnet fleet resulting from the time and area closures in this final rule is expected to be $79,500 for an El Nino year. This estimate is based on California Department of Fish and Game landing receipts for the period from June 1 through August 31, using data from 1997 to 2000. This revenue loss to the fishery is a worst-case scenario based on the assumption that none of the fishing effort will shift to ocean areas that remain open to fishing. Based on 2001 fishing effort data, the reduction in total gross revenues is not expected to exceed $4,970 per vessel per El Nino year. On average, during these time periods, approximately $3,000 of louvar, $11,100 of mako shark, $3,000 of opah, $23,900 of swordfish, and $38,500 of thresher shark are landed. NMFS did not receive comments on the detailed economic analysis and alternatives on the August 2001 EA prepared for this final rule. The El Nino closure that would have been imposed under the December 24, 2002, interim final rule was expected to result in a total gross revenue loss of $440,000 and was expected to impact 500 sets per El Nino year. This final rule minimizes the negative economic impact to the fishery, while maintaining necessary protection for listed sea turtles, by reducing the total gross revenue loss by approximately 82 percent.
In addition to the time and area closures identified in this final rule, NMFS examined several alternatives for reducing or eliminating sea turtle entanglements when developing measures to avoid the incidental take of sea turtles. NMFS searched for a strategy that would provide the most certainty in reducing or eliminating entanglements upon implementation. These strategies included: (1) reducing fishing effort through gear modifications; (2) reducing fishing effort by decreasing the number of vessels; (3) increasing survival of entangled sea turtles; (4) implementing gear modifications to reduce interactions; and (5) changing fishing practices such as shorter soak times. These alternatives were analyzed in detail in the August 13, 2001, EA prepared for the proposed rule. They were not considered further because data are insufficient to determine whether these alternatives would avoid the likelihood of jeopardizing the continued existence of the loggerhead sea turtle as required by section 7(b) of the ESA. NMFS analyzed the patterns of loggerhead sea turtle captures and mortalities in the CA/OR drift gillnet fishery. Based on this assessment, NMFS found that the most effective method of avoiding loggerhead interactions and mortality is a time/area closure during El Nino years (anticipated reduction in interactions is approximately 92 percent). NMFS found no apparent correlation between variations in fishing strategy and loggerhead sea turtle interactions and determined that modifications in gear or gear deployment are not likely to achieve significant or measurable reductions in the capture and mortality rate of these turtles.
This final rule does not contain collection-of-information requirements subject to the Paperwork Reduction Act.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
A BO on the issuance of a marine mammal permit under section 101(a)(5)(E) of the MMPA was issued on October 23, 2000. That BO concluded that issuance of a permit and continued operation of the CA/OR drift gillnet fishery was likely to jeopardize the continued existence of loggerhead turtles. That BO concluded that issuance of a permit and continued operation of the CA/OR drift gillnet fishery was likely to jeopardize the continued existence of leatherback (Dermochelys coriacea) and loggerhead sea turtles. This final rule implements an alternative to the RPA in the BO to protect loggerhead sea turtles. NMFS has determined that the alternative implemented by this final rule is more protective of loggerhead sea turtles than the RPA in the BO. NMFS, which issued the BO, has concurred that this alternative would provide more protection than the RPA identified in the BO and would avoid the likelihood of jeopardizing the continued existence of the loggerhead sea turtle. This alternative does not change the conclusions of the BO related to marine mammals listed under the ESA. Moreover, this final rule will have no adverse impacts on marine mammals that are not listed under the ESA.
In keeping with the intent of Executive Order 13132 to provide continuing and meaningful dialogue on issues of mutual State and Federal interest, NMFS has conferred with the States of California and Oregon regarding the implementation of the RPA. Both California and Oregon have expressed support for the measures identified in the BO for the protection of leatherback and loggerhead sea turtle species. NMFS intends to continue engaging in informal and formal contacts with the States of California and Oregon during the implementation of this RPA and development of the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species.
Endangered and threatened species, Exports, Imports, Marine Mammals, Transportation.
16 U.S.C. 1531-1543; subpart B, § 223.102 also issued under 16 U.S.C. 1361
(d) * * *
(6)
(A) Point Sur (36°18.5′ N) to 34°27′ N 123°35′ W;
(B) 34°27′ N 123°35′ W to 34° 27' N 129° W;
(C) 34°27′ N 129° W to 45° N 129° W;
(D) 45° N 129° W to the point 45° N intersects the Oregon coast.
(ii)
(iii)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule.
The Assistant Administrator for Fisheries (AA), NOAA, announces temporary restrictions consistent with the requirements of the ALWTRP's implementing regulations. These regulations apply to lobster trap/pot and anchored gillnet fishermen in an area totaling approximately 1,356 square nautical miles (nm2) (4,651 km2), east of Portsmouth, NH for 15 days. The purpose of this action is to provide protection to an aggregation of North Atlantic right whales (right whales).
Effective beginning at 0001 hours December 18, 2003, through 2400 hours January 2, 2004.
Copies of the proposed and final Dynamic Area Management rules, Environmental Assessments (EAs), Atlantic Large Whale Take Reduction Team (ALWTRT) meeting summaries, and progress reports on implementation of the ALWTRP may also be obtained by writing Diane Borggaard, NMFS/Northeast Region, One Blackburn Drive, Gloucester, MA 01930.
Diane Borggaard, NMFS/Northeast Region, 978-281-9328 x6503; or Kristy Long, NMFS, Office of Protected Resources, 301-713-1401 x171.
Several of the background documents for the ALWTRP and the take reduction planning process can be downloaded from the ALWTRP Web site at
The ALWTRP was developed pursuant to section 118 of the Marine Mammal Protection Act (MMPA) to reduce the incidental mortality and serious injury of three endangered species of whales (right, fin, and humpback) as well as to provide conservation benefits to a fourth non-endangered species (minke) due to incidental interaction with commercial fishing activities. The ALWTRP, implemented through regulations codified at 50 CFR 229.32, relies on a combination of fishing gear modifications and time/area closures to reduce the risk of whales becoming entangled in commercial fishing gear (and potentially suffering serious injury or mortality as a result).
On January 9, 2002, NMFS published the final rule to implement the ALWTRP's Dynamic Area Management (DAM) program (67 FR 1133). On
A DAM zone is triggered when NMFS receives a reliable report from a qualified individual of three or more right whales sighted within an area (75 nm
On December 4, 2003, an aerial-based survey reported a sighting of five right whales in the proximity of 42° 42.1′ N lat. and 70° 02.2′ W long. This position lies east of Portsmouth, NH. Thus, NMFS has received a reliable report from a qualified individual of the requisite right whale density to trigger the DAM provisions of the ALWTRP.
Once a DAM zone is triggered, NMFS determines whether to impose restrictions on fishing and/or fishing gear in the zone. This determination is based on the following factors, including but not limited to: the location of the DAM zone with respect to other fishery closure areas, weather conditions as they relate to the safety of human life at sea, the type and amount of gear already present in the area, and a review of recent right whale entanglement and mortality data.
NMFS has reviewed the factors and management options noted above relative to the DAM under consideration. Pursuant to this review, NMFS prohibits lobster trap/pot and anchored gillnet gear in this area during the 15-day restricted period unless it is modified in the manner described in this temporary rule. Because the December 4 right whale sightings occurred within the area included in a previous DAM zone triggered by the November 7, 2003, vessel-based sighting of four right whales (68 FR 65409, November 20, 2003), the coordinates for the current DAM zone will encompass the same area, which is bound by the following coordinates:
43°09′N, 70°26′W (NW Corner)
43°09′N, 69°36′W
42°32′N, 69°36′W
42°32′N, 70°26′W
In addition to those gear modifications currently implemented under the ALWTRP at 50 CFR 229.32, the following gear modifications are required in the DAM zone. If the requirements and exceptions for gear modification in the DAM zone, as described below, differ from other ALWTRP requirements for any overlapping areas and times, then the more restrictive requirements will apply in the DAM zone.
Fishermen utilizing lobster trap/pot gear within the portion of the Northern Nearshore Lobster Waters, Northern Inshore State Lobster Waters, and Stellwagen Bank/Jeffreys Ledge Restricted Area that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect:
1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;
2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;
3. Fishermen are allowed to use two buoy lines per trawl; and
4. A weak link with a maximum breaking strength of 600 lb (272.4 kg) must be placed at all buoys.
Fishermen utilizing lobster trap/pot gear within the portion of the Offshore Lobster Waters Area that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect:
1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;
2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;
3. Fishermen are allowed to use two buoy lines per trawl; and
4. A weak link with a maximum breaking strength of 1,500 lb (680.4 kg) must be placed at all buoys.
Fishermen utilizing anchored gillnet gear within the portion of the Other Northeast Gillnet Waters and Stellwagen Bank/Jeffreys Ledge Restricted Area that overlap with the DAM zone are required to utilize all the following gear modifications while the DAM zone is in effect:
1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited;
2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line;
3. Fishermen are allowed to use two buoy lines per string;
4. Each net panel must have a total of five weak links with a maximum breaking strength of 1,100 lb (498.8 kg). Net panels are typically 50 fathoms (91.4 m) in length, but the weak link requirements would apply to all variations in panel size. These weak links must include three floatline weak links. The placement of the weak links on the floatline must be: one at the center of the net panel and one each as close as possible to each of the bridle ends of the net panel. The remaining two weak links must be placed in the center of each of the up and down lines at the panel ends; and
5. All anchored gillnets, regardless of the number of net panels, must be securely anchored with the holding power of at least a 22 lb (10.0 kg) Danforth-style anchor at each end of the net string.
The restrictions will be in effect beginning at 0001 hours December 18, 2003, through 2400 hours January 2, 2004, unless terminated sooner or extended by NMFS through another notification in the
The restrictions will be announced to state officials, fishermen, Atlantic Large Whale Take Reduction Team (ALWTRT) members, and other interested parties through e-mail, phone contact, NOAA website, and other appropriate media immediately upon filing with the
In accordance with section 118(f)(9) of the MMPA, the Assistant Administrator (AA) for Fisheries has determined that this action is necessary to implement a take reduction plan to protect North Atlantic right whales.
This action falls within the scope of alternatives and impacts analyzed in the Final Environmental Assessments prepared for the ALWTRP's DAM program. Further analysis under the National Environmental Policy Act (NEPA) is not required.
NMFS provided prior notice and an opportunity for public comment on the regulations establishing the criteria and procedures for implementing a DAM zone. Providing prior notice and opportunity for comment on this action, pursuant to those regulations, would be impracticable because it would prevent NMFS from executing its functions to protect and reduce serious injury and mortality of endangered right whales. The regulations establishing the DAM program are designed to enable the agency to help protect unexpected concentrations of right whales. In order to meet the goals of the DAM program, the agency needs to be able to create a DAM zone and implement restrictions on fishing gear as soon as possible once the criteria are triggered and NMFS determines that a DAM restricted zone is appropriate. If NMFS were to provide prior notice and an opportunity for public comment upon the creation of a DAM restricted zone, the aggregated right whales would be vulnerable to entanglement which could result in serious injury and mortality. Additionally, the right whales would most likely move on to another location before NMFS could implement the restrictions designed to protect them, thereby rendering the action obsolete. Therefore, pursuant to 5 U.S.C. 553(b)(B), the AA finds that good cause exists to waive prior notice and an opportunity to comment on this action to implement a DAM restricted zone to reduce the risk of entanglement of endangered right whales in commercial lobster trap/pot and anchored gillnet gear as such procedures would be impracticable.
For the same reasons, the AA finds that, under 5 U.S.C. 553(d)(3), good cause exists to waive the 30-day delay in effective date. If NMFS were to delay for 30 days the effective date of this action, the aggregated right whales would be vulnerable to entanglement, which could cause serious injury and mortality. Additionally, right whales would likely move to another location between the time NMFS approved the action creating the DAM restricted zone and the time it went into effect, thereby rendering the action obsolete and ineffective. Nevertheless, NMFS recognizes the need for fishermen to have time to either modify or remove (if not in compliance with the required restrictions) their gear from a DAM zone once one is approved. Thus, NMFS makes this action effective 2 days after the date of publication of this notice in the
NMFS determined that the regulations establishing the DAM program and actions such as this one taken pursuant to those regulations are consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of the U.S. Atlantic coastal states. This determination was submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act. Following state review of the regulations creating the DAM program, no state disagreed with NMFS' conclusion that the DAM program is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program for that state.
The DAM program under which NMFS is taking this action contains policies with federalism implications warranting preparation of a federalism assessment under Executive Order 13132. Accordingly, in October 2001 and March 2003, the Assistant Secretary for Intergovernmental and Legislative Affairs, DOC, provided notice of the DAM program and its amendments to the appropriate elected officials in states to be affected by actions taken pursuant to the DAM program. Federalism issues raised by state officials were addressed in the final rules implementing the DAM program. A copy of the federalism Summary Impact Statement for the final rules is available upon request (
This temporary rule implementing the DAM program has been determined to be not significant under Executive Order 12866.
16 U.S.C. 1361
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
General category closure.
NMFS has determined that the 2003 fishing year Atlantic bluefin tuna (BFT) General category quota will be attained by December 10, 2002. Therefore, the General category fishery will be closed effective 11:30 p.m. on December 10, 2003. This action is being taken to prevent overharvest of the total adjusted General category quota of 534.4 metric tons (mt).
Effective 11:30 p.m. local time on December 10, 2003, through May 31, 2004.
Brad McHale or Dianne Stephan, 978-281-9260.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971
NMFS is required, under § 635.28 (a)(1), to file with the Office of the
The 2003 BFT quota specifications issued pursuant to § 635.27 set a General category quota of 684.4 mt of large medium and giant BFT to be harvested from the regulatory area during the 2003 fishing year, and divided the General category quota into time-period subquotas. On November 18, 2003, NOAA Fisheries transferred 150 mt to the Reserve category, establishing an adjusted coastwide General category quota of 534.4 mt for the 2003 fishing year (68 FR 64990, November 18, 2003). Based on reported landings and effort, NMFS projects that the adjusted quota will be reached by December 10, 2003. Therefore, fishing for, retaining, possessing, or landing large medium or giant BFT intended for sale by persons aboard vessels in the General or HMS Charter/Headboat categories must cease at 11:30 p.m. local time December 10, 2003. The intent of this closure is to prevent overharvest of the adjusted quota established for the General category.
If it is determined that quota remains uncaught in the General category, or if additional quota can be made available to the General category through an inseason transfer, NMFS will announce the re-opening and/or transfer action in a separate
Pursuant to 5 U.S.C. 553 (b) (B), the Assistant Administrator for Fisheries, NOAA (AA), finds that providing for prior notice and public comment for this action is impracticable and contrary to the public interest. Based on recent landings reports, this closure is necessary to prevent the overharvest of the adjusted BFT quota established for the coastwide General category. The fishery is currently underway, and any further delay in this action would cause the fishery to exceed the quota and be inconsistent with domestic and international requirements and objectives. NMFS provides notification of the closure by publishing the closure notice in the
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; implementation of Amendment 13 to the Surfclam and Ocean Quahog Fishery Management Plan (FMP).
NMFS implements measures contained in Amendment 13 to the FMP (Amendment 13). Amendment 13 establishes: A new surfclam overfishing definition; multi-year fishing quotas; a mandatory vessel monitoring system (VMS), when such a system is economically viable; the ability to suspend or adjust the surfclam minimum size limit through a framework adjustment; and an analysis of fishing gear impacts on Essential Fish Habitat (EFH) for surfclams and ocean quahogs. This final rule includes technical corrections to the regulations implementing the FMP in order to clarify the Mid-Atlantic Fishery Management Council's (Council) intent not to restrict allocation ownership to only those entities that also own a permitted vessel, and to eliminate the restriction on the transfer of allocation tags of amounts less than 160 bushels (bu) (85 hectoliters (hL)) (i.e., 5 cage tags). The primary purpose of Amendment 13 is to rectify the disapproved surfclam overfishing definition and the EFH analysis and rationale contained in Amendment 12 in order to comply with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and to simplify the regulatory requirements of the FMP.
Effective January 15, 2004.
Copies of the Amendment 13 document, including the Regulatory Impact Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA), and the Environmental Impact Statement (EIS), and other supporting documents for the amendment are available from Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South Street, Dover, DE 19901-6790. The Final Regulatory Flexibility Analysis (FRFA) consists of the IRFA, public comments and responses contained in this final rule, and the summary of impacts and alternatives contained in this final rule. Copies of the small entity compliance guide are available from Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930-2298.
Susan A. Murphy, Supervisory Fishery Policy Analyst, 978-281-9252, fax 978-281-9135,
This final rule implements approved measures contained in the FMP, which was approved by NMFS on behalf of the Secretary of Commerce (Secretary) on November 21, 2003.
Details concerning the justification for and development of Amendment 13 and the implementing regulations were provided in the preamble to the proposed rule (68 FR 55358, September 25, 2003) and are only summarized here.
Amendment 12 to the FMP was prepared by the Council to bring the FMP into compliance with the Magnuson-Stevens Act, as amended by the Sustainable Fisheries Act of 1996. On April 28, 1999, the Council was
The Amendment 13 measures implemented through this rule are multi-year fishing quotas and the ability to suspend or adjust the surfclam minimum size limit through a framework adjustment. The analysis of fishing gear impacts on EFH for surfclams and ocean quahogs, a new surfclam overfishing definition, and a mandatory VMS requirement are not accompanied by regulatory text because either they are non-regulatory in nature (fishing gear impacts on EFH and the new overfishing definition) or implementation is deferred (a mandatory VMS requirement). However, information on these measures was presented in the preamble of the proposed rule and is only summarized below.
The revised surfclam overfishing definition recommended by the Council and implemented through this final rule is based on the advice of the 30th Stock Assessment Workshop (SAW 30, April 2000), which incorporated the results of a research survey that took place during the summer of 1999. This surfclam overfishing definition is as follows: Biomass target (B
The relatively recent “Workshop on the Effects of Fishing Gear on Marine Habitats off the Northeastern United States” (Workshop, October 2001) concluded that the effects of hydraulic clam dredges were limited to sandy substrates, since this type of gear is not used on muddy or gravel substrates and that overall impacts can be considered minimal. Based on information from this Workshop, NMFS is not taking any action to mitigate fishing gear impacts on EFH.
Beginning in 2005, Amendment 13 replaces the current annual specification process with a process that allows the Council to establish specifications to be in effect for up to 3 fishing years, provided that an annual evaluation of the surfclam and ocean quahog status is undertaken. This multi-year specification process allows the Council and NMFS to be more efficient by streamlining the regulatory process, and provides the industry with greater regulatory consistency and predictability. The maximum 3-year specification process is not meant to constrain the Council from setting specifications during the interim years if information obtained during the annual review indicates that the surfclam or ocean quahog specifications warrant a change, e.g., to comply fully with the Magnuson-Stevens Act.
Amendment 13 lays the groundwork to implement a mandatory VMS requirement based on analysis provided by the Council and the agreement by NMFS that the system is economically viable. Upon such agreement, the Council would submit to NMFS the applicable paperwork to conform with the Paperwork Reduction Act, and submit a full economic analysis pertaining to this new requirement. Once these Council submissions are complete, NMFS will publish a proposed rule followed by a final rule that will evaluate the likely costs and benefits of any proposed VMS program. The public will have an opportunity to comment on all aspects of the proposed VMS program during the rulemaking stage.
This rule adds to the list of frameworkable management measures the ability to suspend or adjust the surfclam minimum size limit. Due to concerns expressed by some industry members, as well as Council concern that it may be more difficult to implement a change rather than to suspend a current provision, the Council voted, and NMFS agrees, to maintain the no action alternative and add to the list of frameworkable management measures the ability to suspend or adjust the surfclam minimum size limit.
The comment periods on the FMP and proposed rule ended on October 23, 2003, and October 27, 2003, respectively. All comments received have been considered as responsive to both comment requests. Three comments were received prior to the close of the comment periods.
This final rule includes changes to the regulations implementing the FMP.
Amendment 8 to the FMP established the individual transferrable quota (ITQ) program for the Atlantic surfclam and ocean quahog fisheries in 1990. Amendment 8 states that there are “no restrictions on the permissible use of the quota.” However, the regulations implementing Amendment 8 refer to the vessel owner as the individual to whom an allocation is issued. This language reflects the fact that the initial allocations were made to vessel owners. Subsequent to the initial allocation, and as contemplated by Amendment 8, some allocation holders sold their vessels or transferred allocation to individuals who did not own a vessel. This final rule changes this provision at 50 CFR 648.70(a) by specifying that the allocation for each fishing year will be allocated to the allocation owner as of the last day of the fishing year that allocation owners are allowed to permanently transfer their allocation (October 15).
The regulation prohibiting the transfer of allocation in amounts less than 160 bu (85 hL) (5 cage tags) was originally intended to reduce the administrative burden on NMFS. However, this regulation has inadvertently placed an undue burden on some vessels, particularly those in the Maine mahogany quahog fishery who chose to participate in the ITQ program, by preventing them from transferring less than 160 bu (85 hL) (5 cage tags) at any time. This regulation has also limited the activities of allocation owners within the Mid-Atlantic region, and may prevent some allocation owners from fully utilizing their allocations. Since the implementation of the ITQ program in 1990, computer programs have reduced the administrative burden such that this restriction is no longer necessary. This modification to the final rule eliminates the 160-bu (85-hL) restriction specified at 50 CFR 648.70(b) and allows participants to transfer allocation in any amount, including transfers of allocation in amounts less than 160 bu (85 hL), and would reduce the economic impact to and regulatory burden on participants in the ITQ program.
The Administrator, Northeast Region, NMFS, determined that the FMP amendment implemented by this rule is necessary for the conservation and management of the Atlantic surfclam and ocean quahog fisheries and that it is consistent with the Magnuson-Stevens Act and other applicable laws.
This final rule has been determined to be not significant for purposes of E.O. 12866.
Included in this final rule is the FRFA that contains the items specified in 5 U.S.C. 604(a). The FRFA consists of the IRFA, the comments and responses to the proposed rule, and the analyses completed in support of this action. A copy of the IRFA is available from the Council (see
The preamble to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated in its entirety here.
A description of the reasons why this action is being considered, and the objectives of and legal basis for this action are contained in the preamble to the proposed rule and are not repeated here.
Comments received prior to the close of the comment period for the proposed rule focused on the measures contained within Amendment 13 and did not reference the analysis contained in the IRFA. Although one commenter stated that NMFS should pay for the cost of VMS units, the requirement to utilize VMS is not being mandated through this rule. Once NMFS determines the economic feasibility of a VMS system, NMFS will inform the public of the likely costs. However, at this time, NMFS believes that use of a VMS is a cost of doing business and should be borne by the industry. For a summary of the comments received, refer to Comments and Responses.
A description and estimate of the number of small entities to which the rule will apply is provided in the IRFA and IRFA summary contained in the Classification section of the proposed rule and is only summarized here.
All of the affected businesses (fishing vessels) are considered small entities under the standards described by the Small Business Administration because they have annual returns (revenues) that do not exceed $3.5 million annually. This rule could affect any vessel holding an active Federal permit for either species. However, the commercial use of the permit is limited to vessels fishing under an individual fishing quota or fishing in the Maine mahogany fishery. In 2001, there were 51 vessels that landed either surfclams (21 vessels), ocean quahogs (16 vessels), or both (14 vessels). There were 31 vessels in 2001 that fished under the federal limited access Maine mahogany quahog permit for Maine ocean quahogs.
There are no recordkeeping, reporting, or other compliance costs forthcoming from this action.
Management measures contained in this rule would establish multi-year quotas and add the suspension of the surfclam minimum size limit and adjustment of the minimum size to the list of frameworkable measures under the FMP. None of the management measures in this rule would result in a substantial change in revenues or profitability of vessels comprising these fisheries. Although additional alternatives were considered for these management measures, the preferred alternative would minimize economic impacts to the greatest extent possible.
The proposal to revise the overfishing definition for surfclams does not alter the optimum yield of the fishery, a basis for determining annual quotas, and does not directly impact gross revenues. Therefore, no change to gross revenues is expected from this revision. However, an initial regulatory flexibility analysis must be prepared at the time when quotas or other management measures that control landings are proposed through a general notice of proposed rulemaking. The NMFS considered three alternative overfishing definitions, none of which would meet the requirements of National Standard 1 of the Magnuson-Stevens Act. These alternative definitions included the following: (1) The disapproved definition from Amendment 12; (2) The pre-Sustainable Fisheries Act Amendment 9 definition; and (3) The Amendment 8 estimate of MSY at 2.9 million bushels (approximately 50 million pounds of shucked meats) for the Mid-Atlantic portion of the resource. As in the case of the preferred alternative, none of these alternatives would directly affect the profitability of individual vessels.
The establishment of multi-year quotas and frameworkable minimum size limits and adjustments for surfclams through this final rule are purely administrative and will not directly impact gross revenues. However, the Council and NMFS will be required to prepare an initial regulatory flexibility analysis for each quota set by the Council and for each surfclam minimum size limit adjustment, if applicable, when a notice of proposed rulemaking is developed.
The NMFS considered two alternatives to the multi-year quota measure including the status quo and an alternative that would set multi-year quotas without annual review. The Council also considered two alternatives to the minimum size limits and adjustments including the status quo and an alternative to adjust minimum sizes when the multi-year decisions occur. As explained above, any changes to annual quotas or adjustments to surfclam minimum size that could result from any alternatives considered would require, subject to the preparation of a proposed rule, preparation of regulatory flexibility analyses at that time.
This final rule does not implement a mandatory VMS program at this time. However, the Council is planning to establish a vessel monitoring program at a later time. When the Regional Administrator determines that an economically viable monitoring system is available to the industry, the Council and NMFS must prepare an IRFA that fully examines the compliance costs associated with that system. A mandatory VMS requirement would be implemented through proposed and final rulemaking by a regulatory amendment.
This rule implements no changes to existing management measures to address fishing gear impacts on EFH. Therefore, there are no impacts on vessel gross revenues resulting from this aspect of Amendment 13.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the action a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide (the guide) was prepared. Copies of the guide will be sent to all holders of commercial Federal Atlantic surfclam and ocean quahog fishery permits. The guide will also be available on the Internet at
Fishing, Fisheries, Reporting and recordkeeping requirements.
16 U.S.C. 1801
(a) * * *
(1) On or about November 1 of each fishing year, the Regional Administrator shall determine the initial allocation of surfclams and ocean quahogs for the next fishing year for each allocation holder owning an allocation pursuant to paragraph (a)(2) of this section. For each species, the initial allocation for the next fishing year is calculated by multiplying the allocation percentage owned by each allocation owner as of the last day of the previous fishing year in which allocation owners are permitted to permanently transfer allocation percentage pursuant to paragraph (b) of this section (i.e., October 15 of every year), by the quota specified by the Regional Administrator pursuant to § 648.71. The total number of bushels of allocation shall be divided by 32 to determine the appropriate number of cage tags to be issued or acquired under § 648.75. Amounts of allocation 0.5 or smaller created by this division shall be rounded downward to the nearest whole number, and amounts of allocation greater than 0.5 created by this division shall be rounded upward to the nearest whole number, so that allocations are specified in whole cages. These allocations shall be made in the form of an allocation permit specifying the allocation percentage and the allocation in bushels and cage tags for each species. An allocation permit is only valid for the entity for which it is issued. Such permits shall be issued on or before December 15, to allow allocation owners to purchase cage tags from a vendor specified by the Regional Administrator pursuant to § 648.75(b).
(b) * * *
(1)
(2)
(a)
(1)
(i) Exploitable and spawning biomass relative to the OY.
(ii) Fishing mortality rates relative to the OY.
(iii) Magnitude of incoming recruitment.
(iv) Projected effort and corresponding catches.
(v) Geographical distribution of the catch relative to the geographical distribution of the resource.
(vi) Status of areas previously closed to surfclam fishing that are to be opened during the year and areas likely to be closed to fishing during the year.
(2)
(b)
(c)
* * * * *
(b)
(a) * * *
(1)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues a final rule to modify the management of the “other species” Community Development Quota (CDQ) reserve by eliminating specific allocations of “other species” CDQ to individual CDQ managing organizations (CDQ groups) and, instead, allowing NMFS to manage the “other species” CDQ reserve with the general limitations used to manage the catch of non-CDQ groundfish in the Bering Sea and Aleutian Islands management area (BSAI). This action also eliminates the CDQ non-specific reserve and makes other changes to improve the clarity and consistency of CDQ Program regulations. This action is necessary to improve NMFS' ability to effectively administer the CDQ Program. It is intended to further the goals and objectives of the North Pacific Fishery
Effective December 15, 2003, except for amendments to §§ 679.2, 679.7, the introductory paragraph to 679.31, and 679.32 which are effective January 15, 2004.
Copies of the Environmental Assessment/Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for this action may be obtained from NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802, Attn: Lori Durall.
Obren Davis, 907-586-7228 or
The groundfish fisheries in the exclusive economic zone (EEZ) of the BSAI are managed under the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP). The Council prepared the FMP pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801,
Regulations codified at 50 CFR part 679 implement the multispecies CDQ Program, a limited access system that provides exclusive harvesting privileges to a portion of the total allowable catches for halibut, crab and groundfish to eligible western Alaska communities. The purpose of this program is to provide the means for starting or supporting commercial fisheries business activities that will result in ongoing, regionally based, fisheries-related economic benefits for residents of eligible communities. NMFS allocates varying amounts of commercially valuable CDQ target species to CDQ groups each year. The harvest of these species provides a financial means for CDQ groups to fund economic development projects in support of overall program objectives.
This action would modify the management of the “other species” CDQ reserve and amend regulations to distinguish between the management of those groundfish CDQ reserves that are allocated to CDQ groups and those that are not. The “other species” complex is comprised of various species of sharks, skates, sculpins, and octopi. These species are incidentally caught with CDQ target species such as pollock, Pacific cod, sablefish, Atka mackerel, and flatfish. Exceeding an annual CDQ allocation results in an enforcement action against a CDQ group, which may include monetary or other penalties. To avoid exceeding their “other species” allocations, CDQ groups may have to modify their fishing practices by fishing in new or different locations or ceasing to fish for some target species. Failing to completely harvest CDQ target species allocations has an economic impact on CDQ groups and the CDQ communities when revenues are foregone, which may adversely affect the accomplishment of projects intended to foster economic development in western Alaska communities.
Under this action the “other species” CDQ reserve would still be established annually, but would no longer be allocated to CDQ groups. All catch of “other species” in the groundfish CDQ fisheries would accrue towards this reserve, rather than towards specific allocations to individual CDQ groups. Eliminating individual “other species” allocations would eliminate the potential that some CDQ target allocations would be unharvested for lack of “other species” bycatch, or that groups would incur enforcement actions for exceeding an annual “other species” CDQ allocation. Some CDQ groups receive allocations of “other species” CDQ that are not necessarily proportionate to the amount CDQ target species they are allocated, while other groups receive adequate amounts or even have surplus “other species” remaining at the end of each year. NMFS would manage the “other species” CDQ reserve as a whole with management measures in § 679.20(d). These measures provide the means to manage the catch of “other species” in both the CDQ and non-CDQ groundfish fishery.
This final rule makes the following changes to CDQ Program regulations: (1) amends the content and headings of definitions associated with the CDQ Program; (2) revises a prohibition associated with calculating maximum retainable amounts of CDQ catch; (3) amends the introductory paragraph that discusses CDQ reserves; (4) amends regulations to distinguish how NMFS will manage groundfish CDQ reserves apportioned to CDQ groups and how it will manage groundfish CDQ reserves that are not apportioned to CDQ groups; (5) amends regulations to specify that the “other species” CDQ reserve, is not allocated among CDQ groups; (6) amends regulations to allow NMFS to manage the “other species” CDQ reserve with fishery management measures typically used in non-CDQ fisheries; (7) amends regulations to describe how NMFS will apply CDQ percentage allocations to revised total allowable catch (TAC) categories that may arise from the annual groundfish harvest specifications process; and (8) amends catch monitoring requirements to align them with revisions to CDQ-related definitions. This action also will rescind the “other species” CDQ percentage allocations made to individual CDQ groups on January 17, 2003, and supercede the Alaska Regional Administrator's 2003-2005 allocation decision pertaining to this CDQ reserve category. These changes are necessary to promote the ability of CDQ groups to more fully utilize their annual groundfish CDQ allocations in support of the goals of the CDQ Program, to enhance NMFS' ability to administer the program, and to improve the consistency and clarity of CDQ Program regulations.
NMFS published a proposed rule to modify the management of the “other species” CDQ reserve on October 22, 2003 (68 FR 60327), with comments invited through November 6, 2003. The preamble to the proposed rule contains a full description and justification of the regulatory revisions implemented by this action. The preamble also contains additional background on the general history of the CDQ program and specific management measures used to allocate and account for the catch of “other species” CDQ, as well as the purpose and need for this action. No letters of comment were received by the end of the comment period. No changes were made from the proposed rule.
For the reasons set forth below, the Assistant Administrator finds that the primary provision of this action relieves a restriction, thereby making the normal 30-day delay in effective date inapplicable to the amendment to § 679.31(f). Without this action, existing regulations prohibit CDQ groups from exceeding any CDQ allocation, as discussed in the preamble. CDQ groups likely will have to curtail some of their target fisheries because they lack adequate “other species” CDQ to account for the incidental catch of such species. In this event, CDQ groups would forfeit some of the revenues that they would otherwise receive from the complete harvest of their CDQ target allocations. This would result in unnecessary adverse impacts to eligible communities that are dependent on CDQ royalties to fund economic development projects or on groundfish CDQ harvesting operations to provide employment to residents. This action would remove the allocation of CDQ “other species” to the CDQ groups and authorize management of CDQ “other
This final rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) that contains the items specified in 5 U.S.C. 604(a). A copy of the EA/RIR/FRFA is available from NMFS (see
NMFS prepared an IRFA to evaluate the impacts of this action on directly regulated small entities in compliance with the requirements of Section 603 of the Regulatory Flexibility Act. The IRFA was described in the classifications section of the proposed rule. The public comment period ended November 6, 2003. No comments related to the economic impact of this action were received.
The small entities that will be directly regulated by this action are the six CDQ groups that represent the 65 western Alaska communities that currently participate in the CDQ Program. This regulation will not impose new recordkeeping or reporting requirements on the regulated small entities.
This action relieves a constraint on CDQ groups to completely harvest their groundfish CDQ target species. NMFS considered, but did not adopt, a status quo alternative to the action because the alternative would not achieve the Council's objective for this action. Three additional alternatives also were identified for this action, but were not carried forward for further analysis. Two of the rejected alternatives encompassed allocative changes to the “other species” category that would have been difficult to accurately calculate to the degree that they would reliably benefit CDQ groups in the future. These rejected alternatives might also have been controversial to other BSAI fishery components due to concerns that such allocative changes could have adverse impacts on the successful prosecution of future non-CDQ fisheries. A third rejected alternative would have been contrary to statutory provisions of the Magnuson-Stevens Act. These alternatives were discussed in further detail in the classification section of the proposed rule.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. Small entities are not required to take any additional actions to comply with this action. This final rule constitutes the agency's small entity compliance guide pursuant to Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. Copies of this final rule are available from NMFS (see ADDRESSES) and at the following web site:
Alaska, Fisheries, Recordkeeping and reporting requirements.
16 U.S.C. 773
(d)* * *
(16) Use any groundfish accruing against a CDQ reserve as a basis species for calculating retainable amounts of non-CDQ species under § 679.20.
Portions of the CDQ and PSQ reserves for each subarea or district may be allocated for the exclusive use of CDQ groups in accordance with CDPs approved by the Governor in consultation with the Council and approved by NMFS. NMFS will allocate no more than 33 percent of each CDQ reserve to any one group with an approved CDP.
(f)
(ii) If the groundfish harvest specifications required by § 679.20(c) change the species comprising a TAC category or change a TAC category by combining or splitting management areas, then the CDQ percentage allocations approved by NMFS for the original TAC category will apply to any new categories.
(iii) A CDQ group is prohibited by § 679.7(d)(5) from exceeding an annual groundfish CDQ amount allocated to it.
(iv) NMFS may specify limitations or prohibitions to prevent overfishing of any BSAI groundfish species, including measures specific to groundfish CDQ species allocated among CDQ groups (see § 679.20(d)(3)).
(2)
(ii) Groundfish CDQ reserves not allocated among CDQ groups will be managed at the CDQ reserve level under general limitations at § 679.20(d).
(c) * * *
(1)
Social Security Administration (SSA).
Proposed rules.
We propose to clarify our rules for assigning SSNs to foreign academic students in Bureau of Citizenship and Immigration Services (BCIS, formerly the Immigration and Naturalization Service or INS) classification status F-1 (referred to throughout this preamble as F-1 students). Specifically, we propose to add additional evidentiary requirements for F-1 students who are applying for an SSN. In addition to meeting SSA's requirement to provide evidence of age, identity, legal alien status, and work authorization, F-1 students would also be required to present evidence that employment has been secured before we will assign the F-1 student an SSN. These rules would further enhance the integrity of SSA's enumeration processes for assigning SSNs by reducing the opportunity for fraud through misuse of SSNs.
To be sure that your comments are considered, we must receive them by February 17, 2004.
You may give us your comments by: using our Internet facility (
The electronic file of this document is available on the date of publication in the
Robert J. Augustine, Social Insurance Specialist, Office of Regulations, 100 Altmeyer Building, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-0020, or TTY (410) 966-5609. For information on eligibility or filing for benefits, call our national toll-free numbers, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet web site, Social Security Online, at
Under section 205(c)(2)(A) of the Social Security Act (the Act), the Commissioner of Social Security is required to “establish and maintain records of the amounts of wages paid to * * * each individual and of the periods in which such wages were paid * * *” In addition, under section 205(c)(2)(B)(i)(I) of the Act, the Commissioner is required to assign Social Security numbers “to the maximum extent practicable * * * to aliens at the time of their lawful admission to the United States either for permanent residence or under other authority of law permitting them to engage in employment in the United States and to other aliens at such time as their status is so changed as to make it lawful for them to engage in such employment.”
Our regulations at 20 CFR 422.105 currently state that a nonimmigrant alien whose INS Form I-94, Arrival/Departure Record, does not reflect a classification permitting work must submit a current document issued by INS that verifies authorization to work has been granted.
Our regulations at 20 CFR 422.107(e) currently state that “When a person who is not a U.S. citizen applies for an original social security number or a duplicate or corrected social security number card, he or she is required to submit, as evidence of alien status, a current document issued by the [INS] in accordance with [its] regulations. The document must show that the applicant has been lawfully admitted to the United States, either for permanent residence or under authority of law permitting him or her to work in the United States, or that the applicant's alien status has changed so that it is lawful for him or her to work.” If the applicant submits a valid unexpired INS document(s) that shows current authorization to work, we will assign an SSN and issue a card that is valid for work.
Current SSA procedures require an F-1 student who needs an SSN for work to present evidence of age, identity, lawful F-1 alien status, and work authorization. This work authorization can either be from BCIS in the form of an employment authorization document (EAD) or from the F-1 student's school. In the past, when an F-1 student applied for an SSN, we believed that the student had a job or imminent plans to secure a job. However, our recent experience has shown that some F-1 students apply for an SSN even when there is limited or no employment available. F-1 students often inform us that they do not intend to work but need an SSN to obtain goods or services in the community.
Additional evidence requirements for F-1 student SSN applicants are needed because available SSA data suggest that some F-1 students assigned SSNs misuse those SSNs to work illegally in the U.S. (
Wages have been reported to us for F-1 students who have been engaged in
In order to strengthen the security of the enumeration process, we propose to require additional evidence from F-1 students before we will assign SSNs to them.
We propose to revise § 422.105 to state that, unless the F-1 student has an employment authorization document issued by BCIS, the F-1 student applicant must provide additional documentation that confirms both that he or she has authorization from the school to engage in employment and has secured authorized employment. (As of March 1, 2003, INS's benefit functions became part of the BCIS in the Department of Homeland Security.) We understand from discussions with BCIS officials that they support our plans to assign SSNs only to those F-1 students who have secured a job. The proposed revision includes a cross-reference to § 422.107(e)(2), where the specific evidence requirements will be explained.
We propose to revise paragraph (e) of § 422.107 of our regulations by redesignating paragraph (e) as paragraph (e)(1) and adding a new paragraph (e)(2) to specify that if an F-1 student does not have an employment authorization document, the F-1 student must provide documentation of both work authorization and employment before we will assign an SSN to the student. First, the F-1 student would need to provide documentation from the school that he or she will be engaging in authorized employment. Under this clarification of our policy, we would not assign an SSN to the F-1 student unless the student provides a Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Status, and provides written confirmation from the designated school official (DSO) of (1) the nature of the employment the F-1 student is or will be engaged in and (2) the identification of the employer for whom the F-1 student is or will be working.
Second, we also propose to require that the F-1 student provide us with documentation that he or she is engaged in or has secured employment,
By adding these additional evidentiary requirements, we believe there will be fewer opportunities for abuse of the enumeration process without having any adverse effects on F-1 students who need to work while they are in the U.S. The additional documentation we would require should be readily available.
Executive Order 12866, as amended by Executive Order 13258, requires each agency to write all rules in plain language. In addition to your substantive comments on these proposed rules, we invite your comments on how to make these rules easier to understand. For example:
• Have we organized the material to suit your needs?
• Are the requirements in the rules clearly stated?
• Do the rules contain technical language or jargon that is unclear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rules easier to understand?
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists or diagrams?
• What else could we do to make the rules easier to understand?
The Office of Management and Budget (OMB) has reviewed these proposed rules in accordance with Executive Order 12866, as amended by Executive Order 13258.
We certify that these proposed rules will not have a significant economic impact on a substantial number of small entities because they would affect only individuals. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.
We have reviewed these proposed rules under the threshold criteria of Executive Order 13132 and have determined that they would 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. There may be some minimal impact on those States whose academic institutions have not developed an alternative method in their record-keeping systems for identifying F-1 students not eligible for SSNs. There may also be some minimal impact on States whose academic institutions may be an F-1 student's employer.
These proposed rules contain reporting requirements as shown in the table below. Where the public reporting burden is accounted for in Information Collection Requests for the various forms that the public uses to submit the information to SSA, a 1-hour placeholder burden is being assigned to the specific reporting requirement(s) contained in these rules; we are seeking clearance of these burdens because they were not considered during the clearance of the forms.
An Information Collection Request has been submitted to OMB for clearance. We are soliciting comments on the burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility and clarity; and on ways to minimize the burden on respondents, including the use of automated collection techniques or other forms of information technology. Comments should be submitted to the Office of Management and Budget at the following fax number and to the Social Security Administration at the following address or fax number:
Office of Management and Budget, Attn: Desk Officer for SSA, Fax Number: 202-395-6974.
Social Security Administration, Attn: SSA Reports Clearance Officer, 1338 Annex Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, Fax Number: 410-965-6400.
Comments can be received for between 30 and 60 days after publication of this notice and will be most useful if received by SSA within 30 days of publication.
Administrative practice and procedure, Organization and functions (Government agencies), Reporting and recordkeeping requirements, Social Security.
For the reasons set forth in the preamble, we propose to amend part 422, subpart B, chapter III of title 20, Code of Federal Regulations as follows:
1. The authority citation for subpart B of part 422 continues to read as follows:
Secs. 205, 232, 702(a)(5), 1131, and 1143 of the Social Security Act (42 U.S.C. 405, 432, 902(a)(5), 1320b-1, and 1320b-13).
2. Section 422.105 is revised to read as follows:
(a)
(b)
(1) You have authorization from your school to engage in employment, and
(2) You are engaging in, or have secured, employment.
3. Section 422.107 is amended by redesignating paragraph (e) as paragraph (e)(1), adding a heading for paragraph (e)(1), and adding a new paragraph (e)(2) to read as follows:
(e)
(2)
(A) The nature of the employment you are or will be engaged in, and
(B) The identification of the employer for whom you are or will be working.
(ii)
James Madison Fellowship Foundation.
Notice of proposed rulemaking.
The following are proposed amendments to the regulations governing the annual competition for James Madison Fellowships and the obligations of James Madison Fellows. These amendments would update and replace certain provisions of the Foundation's existing regulations as implemented by the James Madison Memorial Fellowship Act of 1986. These revised regulations would govern the qualifications and applications of candidates for fellowships; the selection of Fellows by the Foundation; the graduate programs Fellows must pursue; the terms and conditions attached to awards; the Foundation's annual Summer Institute on the Constitution; and related requirements and expectations regarding fellowships.
Comments must be submitted on or before February 17, 2004.
Address all comments about these proposed regulations to James Madison Memorial Fellowship Foundation, 2000 K Street, NW., Suite 303, Washington, DC 20006-1809.
Lewis F. Larsen. Telephone: (202) 653-8700.
The reason for the proposed changes to the Foundation's regulations comes as a result of the Foundation's desire to clarify several of the rules and regulations that James Madison Fellows must observe when accepting their fellowships. Although many of the changes are minor insertions of words and punctuation, this document specifically expands the definition section to include further detailed definitions on Credit Hour Equivalent, Incomplete, Repayment, Satisfactory Progress, Stipend, Teaching Obligation, Termination and Withdrawal. The Foundation now encourages James Madison Fellows to choose a graduate program which does not include the writing of a thesis. Graduate programs for which Fellows may apply have been broadened to included political science. Finally, a section entitled “Teaching Obligation” was added to further clarify the obligation to teach, required by the Foundation once each fellow has earned a master's degree.
The President certifies that these regulations would not have a significant economic impact on a substantial number of small entities.
These regulations apply to individuals eligible to apply for fellowship assistance. Individuals are not included in the definition of “small entities” in the Regulatory Flexibility Act.
These proposed regulations do not contain any information collection requirements.
Education, Fellowships.
For the reasons set forth in the preamble and under authority of 20 U.S.C. 4501
1. The authority citation for part 2400 is revised to read as follows:
20 U.S.C. 4501
2. Section 2400.3 is amended by revising paragraphs (a)(8) and (b)(8) to read as follows:
(a) * * *
(8) Sign agreements that, after completing the education for which the fellowship is awarded, they will teach American history, American government, social studies, or political science full time in secondary schools for a period of not less than one year for each full year of study for which assistance was received, preferably in the State listed as their legal residence at the time of their fellowship award. For the purposes of this provision, a full academic year of study is considered by the Foundation to be 18 credit hours or 27 quarter hours. Fellows' teaching obligations will be figured at full academic years of study; and when Fellows have studies for partial academic years, those years will be rounded upward to the nearest one-half year to determine Fellows' total teaching obligations.
(b) * * *
(8) Sign an agreement that, after completing the education for which the fellowship is awarded, they will teach American history, American government, social studies, or political science full time in secondary schools for a period of not less than one year for each full academic year of study for which assistance was received, preferably in the State listed as their legal residence at the time of their fellowship award. Fellows' teaching obligations will be figured at full academic years of study; and when Fellows have studies for partial academic years, those years will be rounded upward to the nearest one-half year to determine Fellows' total teaching obligations.
3. Section 2400.4 is amended by revising the definitions of “
4. Section 2400.20 is revised to read as follows:
Applications, on forms mailed directly by the Foundation to those who request applications or downloaded from the Foundation's website, must be completed by all fellowship candidates in order that they be considered for an award.
5. Section 2400.30 is amended by adding a new paragraph (g) to read as follows:
(g) Content of the 600-word essay.
6. In § 2400.31, paragraph (b) is amended by removing the word “legally” and adding, in its place, the word “legal”; and paragraph (c) is amended by removing the words “An alternate will receive” and adding, in their place, “An alternate may, at the Foundation's discretion, receive”.
7. In § 2400.42, paragraph (b) is amended by removing the word “constitution” and adding, in its place, the word “Constitution”.
8. In § 2400.43, paragraph (c) is amended by removing the words “strongly encourages” and adding, in their place, the words “in general, requires”.
9. Section 2400.44 is amended by revising paragraph (a) to read as follows:
(a) Fellows may commence study under their fellowships as early as the summer following the announcement of their award. Fellows are normally expected to commence study under their fellowships in the fall term of the academic year following the date on which their award is announced. However, as indicated in § 2400.61, they may seek to postpone the commencement of fellowship study for up to one year under extenuating circumstances.
10. Section 2400.46 is amended by removing the word “five” and adding, in its place, the word “three”.
11. Section 2400.47 is revised to read as follows:
Each year, the Foundation normally offers during July a four-week graduate-level Institute on the principles, framing, ratification, and implementation of the United States Constitution at an accredited university in the Washington, DC area. The Institute is an integral part of each fellowship.
12. Section 2400.48 is revised to read as follows:
Each fellow is required as part of his or her fellowship to attend the Institute (if it is offered), normally during the summer following the Fellow's commencement of graduate study under a fellowship.
13. Section 2400.50 is amended by removing “For their participation in the Institute, Fellows are paid” and adding, in its place, “At the Foundation's discretion, Fellows may be paid”.
14. Section 2400.53 is amended by adding a new sentence at the end to read “A waiver of the time limit may be given for full-time students who require more than 36 credit hours or 54 quarter hours to complete their approved degree.”
15. Section 2400.55 is amended by revising paragraphs (f) and (i) to read as follows:
(f) The amount and nature of income from any other grants or awards;
(i) A full Plan of Study over the duration of the fellowship, including information on the contents of required constitutional courses. Senior Fellows must provide evidence of their continued full-time employment as teachers in grades 7-12.
16. Section 2400.56 is revised to read as follows:
Payment for tuition, required fees, books, room, and board subject to the limitations in §§ 2400.52 through 2400.55 and §§ 2400.59 through 2400.60 will be paid via Electronic Funds Transfer to each Fellow at the beginning of each term of enrollment and upon the Fellow's submission of a completed Payment Request Form which includes the current University bulletin of cost information.
17. In § 2400.58, paragraph (a) is amended by removing the words “fewer than” and adding, in their place, the words “at least”; and paragraph (b) is amended by removing the words “the Foundation will seek to recover” and adding, in their place, the words “the Fellow must repay”.
18. In § 2400.60, paragraph (a) is amended by removing the words “unless they are credited to the minimum number of credits required for the degree” at the end of the paragraph.
19. Section 2400.61 is amended by adding a new sentence at the end to read “All postponements are given at the Foundation's discretion and will normally not extend for more than one year.”
20. Section 2400.63 is revised to read as follows:
James Madison Fellowships do not provide support for study toward doctoral degrees, for the degree of master of arts in public affairs or public administration. The Foundation may at its discretion, upon request of the Fellow, provide tuition only assistance toward teacher certification.
Agricultural Marketing Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Agricultural Marketing Service's (AMS) intention to request an extension for and revision to a currently approved generic information collection for vegetables and specialty crop marketing order programs.
Comments on this notice must be received by February 17, 2004.
Contact Valerie L. Emmer-Scott, Marketing Specialist, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, room 2525-S., Washington, DC 20090-6456; Tel: (202) 205-2829, Fax: (202) 720-5698, or E-mail:
Small businesses may request information on this notice by contacting Jay Guerber, Regulatory Fairness Representative, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, room 2525-S, Washington, DC 20090-6456; telephone (202) 720-2491, Fax: (202) 720-5698, or E-mail:
The information collection requirements in this request are essential to carry out the intent of the Act, to provide the respondents the type of service they request, and to administer the marketing order programs. Under the Act, orders may authorize the following: production and marketing research including paid advertising, volume regulations, reserves including pools and producer allotments, container regulations, and quality control. Assessments are levied on handlers regulated under the marketing orders. Also pursuant to section 8e of the Act, importers of raisins, dates, and dried prunes are required to submit certain information.
Several forms are required to be filed by USDA to enable its administration of each program. These include forms covering the section process for industry members to serve on a marketing order's committee or board and ballots used in referenda to amend or continue marketing order programs.
Under Federal marketing orders, producers and handlers are nominated by their peers to serve as representatives on a committee or board which administers each program. Nominees must provide information on their qualifications to serve on the committee or board. Nominees are selected by the Secretary. Formal rulemaking amendments must be approved in referenda conducted by USDA and the Secretary. For the purposes of this action, ballots are considered information collections and are subject to the Paperwork Reduction Act. If an order is amended, handlers are asked to sign an agreement indicating their willingness to abide by the provisions of the amended order.
Some forms are required to be filed with the committee or board. The orders and their rules and regulations authorize the respective commodities' committees and boards, the agencies responsible for local administration of the orders, to require handlers and producers to submit certain information. Much of the information is compiled in aggregate and provided to the respective industries to assist in marketing decisions. The committees and boards have developed forms as a means for persons to file required information relating to supplies, shipments, and dispositions of their respective commodities, and other information needed to effectively carry out the purpose of the Act and their respective orders, and these forms are utilized accordingly.
OMB Control No. 0581-0071, Almonds Grown in California, Marketing Order No. 981, will also be merged into this information collection.
The forms covered under this information collection require the minimum information necessary to effectively carry out the requirements of the orders, and their use is necessary to fulfill the intent of the Act as expressed in the orders, and the rules and regulations issued under the orders.
The information collected is used only by authorized employees of the committees and boards and authorized representatives of the USDA, including AMS, Fruit and Vegetable Programs' regional and headquarter's staff. Authorized committee/board employees are the primary users of the information and AMS is the secondary user.
Comments should reference this docket number and the appropriate marketing order, and be mailed to the Docket Clerk, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, room 2525-S, Washington, DC 20250-0237; Fax: (202) 720-8938; or E-mail:
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
Agricultural Marketing Service, USDA.
Notice.
The Agricultural Marketing Service (AMS), prior to undertaking research and other work associated with creating an official grade standard, is soliciting comments on the petition to create the United States Standards for Grades of Mangos. At a recent meeting of the Fruit and Vegetable Industry Advisory Committee, AMS was asked to review all the fresh fruit and vegetable grade standards for usefulness in serving the industry and identify commodities that may be better served if a grade standard was developed. As a result, AMS has noted that the industry is interested in the creation of U.S. Standards for Grades of Mangos.
Comments must be received by February 17, 2004.
Interested persons are invited to submit written comments to the Standardization Section, Fresh Products Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Ave., SW., Room 1661, South Building, Stop 0240, Washington, DC 20250-0240, fax (202) 720-8871, e-mail
David L. Priester, at the above address or call (202) 720-2185, e-mail
At a recent meeting of the Fruit and Vegetable Industry Advisory Committee, AMS was asked to review all the fresh fruit and vegetable grade standards for usefulness in serving the industry and identify commodities that may be better served if a grade standard was developed. During the standards review, AMS noted that several industry members requested AMS develop a grade standard for mangos. In conjunction with industry interest in the development of a grade standard for mangos, AMS has also identified mangos as a possible commodity for the development of a grade standard. This standard could contain sections pertaining to grades, size classifications, color requirements, tolerances, application of tolerances, pack requirements, definitions, and other relevant and necessary provisions. Prior to undertaking detailed work to develop a proposed standard, AMS is soliciting comments on the possible development of U.S. standards for grades of mangos and the probable impact on growers, processors, and distributors.
This notice provides for a 60-day comment period for interested parties to comment on the development of the standards. Should AMS conclude that there is a need for the development of the standards, a proposed standard will be published in the
7 U.S.C. 1621-1627.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The USDA, Forest Service, will prepare an environmental impact statement (EIS) on a proposed action to salvage dead and severely damaged trees, and plant trees and other vegetation to assist in the restoration of the area burned in the 18 Fire on the Bend/Fort Rock Ranger District of the Deschutes National Forest. The 18 Fire, located about 3.5 miles southeast of Bend, Oregon, burned approximately 3,810 acres, outside of the range of the northern spotted owl, entirely on National Forest System lands. The alternatives will include the proposed action, no action, and additional alternatives that respond to issues generated during the scoping process. The agency will give notice of the full environmental analysis and decision making process so interested and affected people may participate and contribute to the final decision.
Comments concerning the scope of the analysis must be received by January 16, 2004.
Send written comments to Walter C. Schloer, Jr., District Ranger, Bend/Fort Rock Ranger District, 1230 NE. Third Street, Suite 262A, Bend, Oregon 97701.
Mark Macfarlane, Environmental Coordinator, 1230 NE. Third Street, Suite 262A, Bend, Oregon 97701. Phone: 541-383-4769. E-mail:
Timber salvage is needed to recover economic value and to provide funds to offset the costs of reforestation and restoration is an important emphasis of these management areas. Adjacent seed sources are no longer available in many areas, particularly within the interior areas of the fire. Based on shrub response within adjacent wildfires, interior areas with high tree mortality would require reforestation by planting ponderosa pine. Planting would establish a ponderosa pine forest that is desirable for long-term objectives such as hiding cover for big game and restoration of habitat for forest dependent species. Lowering fuel loadings to a level that reduces the likelihood of a high severity fire in regenerated stands would promote the long-term survival and growth of new conifers. A fire in heavy surface fuels could increase the duration of elevated temperatures during a fire event to levels capable of altering soil properties and affecting site productivity.
A draft EIS will be filed with the Environmental Protection Agency (EPA) and available for public review by April 2004. The comment period on the draft EIS will be 45 days from the date EPA publishes the Notice of Availability in the
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court ruling 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 on the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
In the final EIS, the Forest Service is required to respond to substantive comments received during the comment period for the draft EIS. The Forest Service is the lead agency and the responsible official is the Forest Supervisor, Deschutes National Forest. The responsible official will decide where, and whether or not to salvage timber, reduce fuels, and reforest the area. The responsible official will also decide how to mitigate impacts of these actions and will determine when and how monitoring of effects will take place. The 18 Fire Recovery Project decision and the reasons for the decision will be documented in the record of decision. That decision will be subject to Forest Service Appeal Regulations (36 CFR Part 215).
Pursuant to the authorities in the Federal Advisory Committees Act (Public Law 92-463) and under the Secure Rural Schools and Community Self-Determination Act of 2000 (Public Law 106-393), the Modoc National Forest's Modoc County Resource Advisory Committee will meet Monday January 5, 2004 from 6 to 8 p.m. in Alturas, California. The meeting is open to the public.
Agenda topics for the meeting include approval of the November 3, 2003 minutes, quarterly review of projects approved, consideration of a modification to the Sugar Hill project, and election of new officers. The meeting will be held at Modoc National Forest Office, Conference Room, 800 West 12th St., Alturas, California on Monday, January 3, 2004 from 6 to 8 p.m. Time will be
Forest Supervisor Stan Sylva, at (530) 233-8700; or Public Affairs Officer Nancy Gardner at (530) 233-8713.
Forest Service, USDA.
Notice of issuance of final agency directive.
The Forest Service is issuing a final directive that incorporates direction previously issued in the Forest Service directive system as Interim Directive (ID) 7710-2001-3 and ID 7710-2001-1, with minor clarifications. This final directive provides internal administrative direction to guide Forest Service employees in the improvement of the analysis of and decisionmaking about the forest transportation system. The final directive is issued to the Forest Service Manual (FSM) Title 7700—Engineering, Chapter 7710—Transportation Atlas, Records, and Analysis, as Amendment 7700-2003-2.
The final directive is effective December 16, 2003.
The final directive, which includes a digest of the summary of changes and the revised directive text in its entirety, is available electronically via the World Wide Web/Internet at
Deborah Beighley or Nelson Hernandez, Engineering Staff, Forest Service, at (703) 605-4617 and (703) 605-4613, respectively.
On January 12, 2001, the Forest Service concurrently adopted revised final regulations at 36 CFR part 212 (66 FR 3206) and revised agency directives in Forest Service Manual (FSM) Chapter 7700—Zero Code and Chapter 7710—Transportation Atlas, Records, and Analysis (66 FR 3219) to guide transportation planning, analysis, and management, especially road management on National Forest System lands. These regulations and directives together comprise what is referred to as the Forest Service Road Management Strategy.
The final rule at 36 CFR part 212 directs the Responsible Official of each National Forest, Grassland, or other unit of the National Forest System to perform a comprehensive analysis of the road system within the unit and to document the overall forest transportation system in a transportation atlas.
The directive at FSM Chapter 7710 (Amendment 7700-2001-3) established standards for creation of the road atlas and for determining the scope and scale of roads analyses needed to inform road management decisions; that is, road construction, reconstruction, and decommissioning. Additionally, this revision of FSM Chapter 7710 included interim requirements that, rather than addressing the transportation atlas, record, or analysis, imposed a significant restriction on road construction or reconstruction in inventoried roadless areas and contiguous unroaded areas until a forest-scale roads analysis is completed and incorporated into the Forest plan.
Upon adoption of the road management final rule and directives in January 2001, the Department and the agency reviewed those documents to determine if there were impediments to implementation. These reviews led the agency to initiate several Interim Directives (IDs).
The first was ID 7710-2001-1, issued May 31, 2001 (66 FR 44590), which encouraged reliance on local expertise and authority over forest-level issues as much as possible. The next two IDs (7710-2001-2 and 2400-2001-3) issued July 27, 2001 (66 FR 44111), implemented the Chief's June 7, 2001, announcement to manage and protect inventoried roadless areas as an important component of the National Forest System and to reserve the authority to make decisions, except in specific circumstances, regarding road management activities and timber harvesting in those areas. In a letter to Regional Foresters dated June 12, 2001, the Deputy Chief for National Forest System, noting the Chief's June 7, announcement, asked Regional Foresters and Forest Supervisors to review the road management policy to identify any provisions that they believed should be revised.
Further review of the road management policy resulted in the issuance of two new IDs (7710-2001-3 and 1920-2001-1) issued December 14, 2001 (66 FR 65796), which separated interim requirements related to road construction and reconstruction in inventoried roadless areas from the roads analysis direction in FSM Chapter 7710 and relocated the modified interim requirements to FSM Chapter 1920—Land and Resource Management Planning.
Over 72,000 responses in the form of letters, faxes, and e-mail messages were received on the three different
Public comment on the five IDs addressed a wide range of topics, many of which were directed at management of roadless areas and issues associated with the ID 1920-2001-1 to FSM Chapter 1920. Many people supported the IDs to FSM Chapter 7710, which provided for better inventory, analysis, and management of the Forest Service roads system, and separated direction for managing roads from direction on managing National Forest System land. Some respondents requested that the Forest Service revise the ID to FSM Chapter 7710 to clarify the definition of a road and the need for and content of a roads analysis.
This final directive to FSM 7710 represents the culmination of the agency's internal and public reviews of the practices concerning management of the forest transportation system. The agency has decided to incorporate the current ID direction into Amendment 7700-2003-2 to FSM 7710, with some minor clarifications. Comments regarding ID 1920-2001-1 to FSM Chapter 1920 on roadless area management will be addressed when the Amendment to that chapter is finalized.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Extension of Time Limits.
The Department of Commerce (the Department) is extending the time limits for the preliminary results of the 2002 - 2003 administrative review of the antidumping duty order on circular welded carbon steel pipe and tubes from Taiwan. This review covers one manufacturer/exporter of the subject merchandise to the United States, Yieh Hsing Enterprise Co., Ltd. (Yieh Hsing), and the period May 1, 2002 through April 30, 2003.
December 16, 2003.
Robert M. James at (202) 482-0649, AD/CVD Enforcement Office Eight, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On July 1, 2003, in response to a request from petitioners, Allied Tube & Conduit Corporation, IPSCO Tubulars, Inc., and Wheatland Tube Company, the Department published in the
Section 751(a)(3)(A) of the Tariff Act and 351.213(h) of the Department's regulations require the Department to issue the preliminary results of an antidumping administrative review within 245 days after the last day of the month in which occurs the anniversary date of the publication of the order. These same sections, however, provide that if it is not practicable to complete the review within those deadlines, the Department may extend the 245-day period to 365 days. We have determined it is not practicable for the Department to complete this review within the normal statutory time limit due to a number of significant case issues. These include,
Because it is not practicable to complete this review within the normal statutory time limit, the Department is extending the time limits for completion of the preliminary results until May 30, 2004, in accordance with section 751(a)(3)(A) of the Tariff Act and 351.213(h)(2) of the Department's regulations. The deadline for the final results of this review will continue to be 120 days after publication of the preliminary results.
This extension is in accordance with section 751(a)(3)(A) of the Tariff Act of 1930, as amended (19 U.S.C. 1675(a)(3)(A)).
Import Administration, International Trade Administration, Department of Commerce.
On August 20, 2003, the Department of Commerce (the Department) initiated these antidumping duty investigations of Electrolytic Manganese Dioxide from Australia, Greece, Ireland, Japan, and South Africa, (68 FR 51551, dated August 27, 2003). The notice of initiation stated that the Department would issue preliminary determinations no later than January 7, 2004, 140 days after the date of initiation.
December 16, 2003.
Joe Welton, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0165.
Pursuant to section 733(b)(1)(A) of the Act, the Department shall make a preliminary determination in an antidumping duty investigation within 140 days after the date on which the Department initiates the investigation. Section 733 (c)(1)(A) of the Act further provides, however, that the Department may extend the 140-day period to 190 days if the petitioner makes a timely request for an extension. On November 14, 2003 and November 26, 2003, Kerr-McGee Chemical, LLC (“petitioner”) made timely requests pursuant to 19 CFR 351.205(e) for 30-day and 20-day postponements, respectively, for a total of 50 days, pursuant to section 733(c)(1)(A) of the Act. Therefore, in accordance with petitioner's requests for postponements, the Department is postponing the preliminary determinations in these investigations for 50 days. These preliminary determinations will now be due no later than February 26, 2004. Unless extended, the deadline for the final determinations will continue to be 75 days after the date of the preliminary determinations.
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f).
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of first antidumping duty administrative review.
In response to requests from interested parties, the Department of Commerce (the Department) is conducting the first administrative review of the antidumping duty order on honey from the People's Republic of China. The period of review for those entities with an affirmative critical circumstances finding is February 10, 2001, through November 30, 2002. For all other companies, the period of review is May 11, 2001, through November 30, 2002. Two companies named in the initiation of this review had no exports or sales of the subject merchandise during their applicable period of review, and consequently we rescinded the review of these companies. In addition, we rescinded our review of three companies that are participating in new shipper reviews covering the period February 10, 2001, through November 30, 2002. We preliminarily determine that three companies have failed to cooperate by not acting to the best of their ability to comply with our requests for information and, as a result, should be assigned a rate based on adverse facts available. Finally, we have preliminarily determined that one respondent did make sales to the United States of the subject merchandise at prices below normal value.
We invite interested parties to comment on these preliminary results. Parties that submit comments are requested to submit with each argument (1) a statement of the issue, and (2) a brief summary of the argument(s).
December 16, 2003.
Angelica Mendoza or Brandon Farlander at (202) 482–3019 or (202) 482–0182, respectively; Antidumping and Countervailing Duty Enforcement Group III, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230.
On December 17, 2002, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on honey from the People's Republic of China (PRC), 67 FR 77222 (December 17, 2002). On December 31, 2002, the Department received a timely request from the American Honey Producers Association and the Sioux Honey Association (collectively, petitioners) requesting that the Department conduct an administrative review of the antidumping duty order on honey shipments exported to the United States from the following PRC honey producers/exporters during the period of May 11, 2001, through November 30, 2002: (1) Anhui Native Produce Import & Export Corp. (Anhui), (2) Henan Native Produce and Animal By-Products Import & Export Company (Henan), (3) High Hope International Group Jiangsu Foodstuffs Import and Export Corp. (High Hope), (4) Inner Mongolia Autonomous Region Native Produce and Animal By-Products Import & Export Corp. (Inner Mongolia), (5) Kunshan Foreign Trade Company (Kunshan), (6) Shanghai Eswell Enterprise Co., Ltd. (Shanghai Eswell), (7) Shanghai Xiuwei International Trading Co., Ltd. (Shanghai Xiuwei), (8) Sichuan-Dujiangyan Dubao Bee Industrial Co., Ltd. (Sichuan Dubao), (9) Wuhan Bee Healthy Co., Ltd. (Wuhan), and (10) Zhejiang Native Produce and Animal By-Products Import & Export Corp. On December 31, 2002, we received a timely request from Zhejiang Native Produce and Animal By-Products Import & Export Corp. a.k.a. Zhejiang Native Produce and Animal By-Products Import and Export Group Corporation (Zhejiang) requesting that the Department conduct an administrative review of its honey shipments to the United States during the period May 11, 2001, through November 30, 2002. On January 22, 2003, the Department initiated an administrative review of the antidumping duty order on honey from the PRC, for the period of May 11, 2001, through November 30, 2002, in order to determine whether merchandise imported into the United States is being sold at less than fair value with respect to these ten companies.
On February 20, 2003, the Department issued antidumping duty questionnaires to the above-referenced ten PRC companies. On February 28, 2003, Wuhan submitted a letter certifying that it did not have any other shipments during the first review period that are not already subject to an ongoing new shipper review.
On April 4, 2003, we received responses to Section A of our antidumping duty questionnaire from Zhejiang, Wuhan, and High Hope. In its reply to the antidumping duty questionnaire, High Hope stated that it is unwilling to make the expenditure of time and money required to participate in the review, and therefore, has concluded that it is not able to fully respond to the Department's questionnaire. On April 7, 2003, the Department received notification from Kunshan that it will not be participating in this proceeding, and therefore, it is not responding to our questionnaire.
On April 22, 2003, petitioners withdrew their request for review of Shanghai Eswell. On May 6, 2003, the Department rescinded, in part, the administrative review of the antidumping duty order on honey with respect to Shanghai Eswell.
On May 6, 2003, the Department preliminarily determined to rescind, in part, the administrative reviews with respect to Anhui, Inner Mongolia, Shanghai Xiuwei, Sichuan Dubao, and Wuhan.
On May 16, 2003, we issued a supplemental questionnaire to Zhejiang. On June 10, 2003, we invited interested parties to comment on the Department's surrogate country selection and/or significant production in the potential countries, and to submit publicly-available information to value the factors of production. On June 20, 2003, we received Zhejiang's supplemental questionnaire response. On June 24, 2003, we received petitioners' comments on the selection of a surrogate country in this proceeding. Zhejiang did not comment on the selection of a surrogate country in this proceeding. On June 30, 2003, petitioners submitted comments on Zhejiang's supplemental questionnaire response. On July 7, 2003, we issued a second supplemental questionnaire to Zhejiang. On July 7, 2003, Zhejiang and petitioners submitted surrogate information with which to value the factors of production. On July 17, 2003, we received Zhejiang's comments on petitioners' July 7, 2003, surrogate value submission. On July 18, 2003, we received Zhejiang's second supplemental questionnaire response.
On July 25, 2003, the Department issued a final determination to rescind, in part, the administrative reviews of Anhui, Inner Mongolia, Shanghai Xiuwei, Sichuan Dubao, and Wuhan.
The products covered by this order are natural honey, artificial honey containing more than 50 percent natural honey by weight, preparations of natural honey containing more than 50 percent natural honey by weight, and flavored honey. The subject merchandise includes all grades and colors of honey whether in liquid, creamed, comb, cut comb, or chunk form, and whether packaged for retail or in bulk form.
The merchandise subject to this review is currently classifiable under subheadings 0409.00.00, 1702.90.90, and 2106.90.99 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and U.S. Customs and Border Protection (CBP) purposes, the Department's written description of the merchandise under order is dispositive.
As provided in section 782(i)(2) of the Tariff Act of 1930, as amended (the Act), and section 351.307 of the Department's regulations, we conducted verification of the questionnaire and supplemental responses of Zhejiang. We used standard verification procedures, including on-site inspection of the production facility of Zhejiang's unaffiliated supplier. Our verification results are outlined in the Memorandum to the File, through Abdelali Elouaradia, Program Manager, Verification of U.S. Sales Information Submitted by Zhejiang Native Produce & Animal By-Products Import & Export Group Corporation (a.k.a. Zhejiang Native Produce and Animal By-Products Import & Export Corp.) (Zhejiang) and Factors of Production Information Submitted by Zhejiang's Unaffiliated Supplier, dated September 26, 2003 (Zhejiang Verification Report). A public version of this report is on file in the Central Records Unit (CRU) located in room B-099 of the Main Commerce Building.
In proceedings involving non-market economy (NME) countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty rate unless an exporter can affirmatively demonstrate an absence of government control, both in law (
To establish whether a company is sufficiently independent in its export activities from government control to be entitled to a separate, company-specific rate, the Department analyzes the exporting entity in an NME country under the test established in the
The Department's separate-rate test is unconcerned, in general, with macroeconomic/ border-type controls (
Zhejiang provided separate-rate information in its responses to our original and supplemental questionnaires. Accordingly, we performed a separate-rates analysis to
As stated-above in the “Background” section, Kunshan and High Hope did not respond to the Department's antidumping questionnaire. Rather, as noted-above, these companies informed the Department that they would not be participating in this proceeding. Moreover, the Department did not receive any type of response from Henan, although we issued it a supplemental request for information as noted in the “Background” section above. Because none of these three companies responded to our request for information regarding separate rates, we preliminarily determine that these companies do not merit separate rates.
The Department considers the following
Zhejiang has placed on the record a number of documents to demonstrate absence of
Zhejiang submitted a copy of its business license in Exhibit 4 of its Section A questionnaire response, dated April 4, 2003. This license was issued by the Zhejiang Province Industrial and Commercial Administration Bureau. Zhejiang explains that its business license is necessary to register the company. Zhejiang affirms that its business operations are limited to the scope of the license, and that the license may be revoked if the company engages in illegal activities or if the company is found to have insufficient capital. At verification, we found that Zhejiang's business license and “Certificate of Approval: For Enterprises with Foreign Trade Rights in the People's Republic of China” were granted in accordance with the above-reference PRC laws. Moreover, the results of verification support the information provided regarding these PRC laws.
Therefore, consistent with our final determination in the less-than-fair-value investigation (LTFV), we preliminarily determine that there is an absence of
Typically, the Department considers four factors in evaluating whether a respondent is subject to
As stated in previous cases, there is some evidence that certain enactments of the PRC central government have not been implemented uniformly among different sectors and/or jurisdictions in the PRC.
Zhejiang has asserted the following: (1) it is a publicly-owned company that is independent from government control; (2) it sets prices through direct negotiations with U.S. customers, and such prices consider the company's total costs, including acquisition costs as well as movement expenses, overhead expenses and profit; (3) there is no government participation in its setting of export prices; (4) its Manager of the Bee Products Departments and authorized employees have the authority to bind sales contracts; (5) it does not have to notify any government authorities of its management selection; (6) there are no restrictions on the use of its export revenue and that its President decides how profits will be used; (7) it is responsible for financing its own losses; and (8) it is not required to sell any portion of foreign currency earned to the government.
Zhejiang, Kunshan, Henan, and High Hope were given the opportunity to respond to the Department's questionnaire. As explained above, we received questionnaire responses from Zhejiang, and we have calculated a separate rate for Zhejiang. The PRC-wide rate applies to all entries of subject merchandise except for entries from PRC producers/exporters that have their own calculated rate.
As discussed above, Kunshan, Henan, and High Hope are appropriately considered to be part of the PRC-wide entity. Therefore, we determine it is necessary to review the PRC-wide entity because it did not provide information necessary to the instant proceeding. In doing so, we note that section 776(a)(1) of the Act mandates that the Department use the facts available if necessary information is not available on the record of an antidumping proceeding. In addition, section 776(a)(2) of the Act provides that if an interested party or any other person: (A) withholds information that has been requested by the administering authority; (B) fails to provide such information by the deadlines for the submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 782; (C) significantly impedes a proceeding under this title; or (D) provides such information but the information cannot be verified as provided in section 782(i), the Department shall, subject to section 782(d) of the Act, use the facts otherwise available in reaching the applicable determination under this title.
According to section 776(b) of the Act, 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 the 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.”
As above stated, the PRC-wide entity did not respond to our requests for information. Because the PRC-wide entity did not respond to our request for information, we find it necessary, under section 776(a)(2) of the Act, to use facts otherwise available as the basis for the preliminary results of review for the PRC-wide entity.
In addition, pursuant to section 776(b) of the Act, we find that the PRC-wide entity failed to cooperate by not acting to the best of its ability to comply with a request for information. As noted above, the PRC-wide entity informed the Department that it would not participate in this review, or otherwise, did not provide any response to the Department's questionnaire, despite repeated requests that it do so. Thus, because the PRC-wide entity refused to participate fully in this proceeding, we find it appropriate to use an inference that is adverse to the interests of the PRC-wide entity in selecting from among the facts otherwise available. By doing so, we ensure that the companies that are part of the PRC-wide entity will not obtain a more favorable result by failing to cooperate than had they cooperated fully in this review.
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.
In accordance with the Department's practice, we have preliminarily assigned to the PRC-wide entity (including Kunshan, Henan, and High Hope) the rate of 183.80 percent as adverse facts available.
We note that information from a prior segment of this proceeding constitutes “secondary information,” and section 776(c) of the Act provides that, when the Department relies on such secondary information rather than on information obtained in the course of a review, the Department shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal.
We note that in the LTFV investigation, the Department corroborated the information in the petition that formed the basis of the 183.80 percent PRC-wide entity rate.
In order to satisfy the corroboration requirements under section 776(c) of the Act, in the instant review, we reviewed the Department's corroboration of the petition rates from the LTFV investigation.
We further note that, with respect to the relevance aspect of corroboration, the Department stated in
To determine whether Zhejiang's sales of the subject merchandise to the United States were made at prices below normal value, we compared their United States prices to normal values, as described in the “United States Price” and “Normal Value” sections of this notice.
For Zhejiang, we based United States price on export price (EP) in accordance with section 772(a) of the Act, because the first sale to an unaffiliated purchaser was made prior to importation, and constructed export price (CEP) was not otherwise warranted by the facts on the record. We calculated EP based on the packed price from the exporter to the first unaffiliated
customer in the United States. Where applicable, we deducted foreign inland freight, international freight, marine insurance expenses, and bank charges from the starting price (gross unit price), in accordance with section 772(c) of the Act.
Section 773(c)(1) of the Act provides that the Department shall determine NV using a factors-of-production methodology if (1) the merchandise is exported from an NME country, and (2) available information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act.
In every case conducted by the Department involving the PRC, the PRC has been treated as an NME country. Pursuant to section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. Zhejiang did not contest such treatment in this review. Accordingly, we have applied surrogate values to the factors of production to determine NV for each of Zhejiang's processed honey suppliers. See Factors of Production Valuation Memorandum for the Preliminary Results of the First Administrative Review of the Antidumping Duty Order on Honey from the People's Republic of China, dated December 10, 2003 (Factor Valuation Memo). A public version of this memorandum is on file in the CRU located in room B-099 of the Main Commerce Building.
We calculated NV based on factors of production in accordance with section 773(c)(4) of the Act and section 351.408(c) of our regulations. Consistent with the LTFV investigation of this order and the final results of a recent new shipper review covering the subject merchandise, we determine that India (1) is comparable to the PRC in level of economic development, and (2) is a significant producer of comparable merchandise.
In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data, in accordance with our practice. Where appropriate, we adjusted Indian import prices by adding foreign inland freight expenses to make them delivered prices. When we used Indian import values to value inputs sourced domestically by PRC suppliers, we added to Indian surrogate values a surrogate freight cost calculated using the shorter of the reported distance from the domestic supplier to the factory or the distance from the nearest port of export to the factory. This adjustment is in accordance with the Court of Appeals for the Federal Circuit's decision in
We valued the factors of production as follows:
To value raw honey, we continue to use the average of the highest and lowest price for one kilogram (kg.) of raw honey stated in an article published in
To value beeswax, a raw honey by-product, we used the average per kilogram import value of beeswax into India for the POR under the Indian Customs' heading of “152190” obtained from the World Trade Atlas, which notes that its data was obtained from the Ministry of Commerce of India (World Trade Atlas). To value scrap honey, a raw honey by-product, we used the average per kilogram import value of inedible molasses into India for the POR under the Indian Customs' heading of “170390” obtained from the World Trade Atlas. We converted the surrogate values for beeswax and scrap honey from a per kg.-basis to a per MT-basis.
To value coal, we relied upon contemporaneous Indian import values of “steam coal” under the Indian Customs' heading of “2701011902” obtained from the World Trade Atlas. We also adjusted the surrogate value for coal to include freight costs incurred between the supplier and the factory. To value electricity, we used the 2000 total average price per kilowatt hour, adjusted for inflation, for “Electricity for Industry” as reported in the International Energy Agency's publication,
To value packing materials (
To value factory overhead, selling, general, and administrative expenses (SG&A), and profit, we relied upon publicly-available information in the 2001-2002 annual report of the Mahabaleshwar Honey Producers Cooperative Society, Ltd. (MHPC), a producer of the subject merchandise in India. We applied these rates to the calculated cost of manufacture and cost of production using the same methodology established in
For labor, we used the PRC regression-based wage rate at Import Administration's home page, Import Library, Expected Wages of Selected NME Countries, revised in September 2002, and corrected in February 2003. Because of the variability of wage rates in countries with similar per capita gross domestic products, section 351.408(c)(3) of the Department's regulations requires the use of a regression-based wage rate. The source of these wage rate data on the Import Administration's web site is the
To value truck freight, we used an average truck freight cost based on Indian market truck freight rates on a per MT basis published in the
To value marine insurance expenses, where necessary, we used publicly-available price quotes from a marine insurance provider at http://www.rigconsultants.com/insurance/html.
For details on factor of production valuation calculations, see Factor Valuation Memo.
We made currency conversions pursuant to section 351.415 of the Department's regulations at the rates certified by the Federal Reserve Bank.
We preliminarily determine that the following antidumping duty margins exist:
For details on the calculation of the antidumping duty weighted-average margin for Zhejiang,
Pursuant to section 351.212(b), the Department calculates an assessment rate for each importer of the subject merchandise. Upon issuance of the final results of this review, if any importer-specific assessment rates calculated in the final results are above
The following cash-deposit rates will be effective upon publication of the final results of this review for all shipments of honey from the PRC entered, or withdrawn from warehouse, for consumption on or after publication date, as provided for by section 751(a)(2)(C) of the Act: (1) for subject merchandise exported by Zhejiang, the cash-deposit rate will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore,
These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
The Department will disclose calculations performed in connection with the preliminary results of this review within five days of the date of publication of this notice in accordance with section 351.224(b) of the Department's regulations. Any interested party may request a hearing within 30 days of publication of this notice in accordance with section 351.310(c) of the Department's regulations. Any hearing would normally be held 37 days after the publication of this notice, or the first workday thereafter, at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230. Individuals who wish to request a hearing must submit a written request within 30 days of the publication of this notice in the
Unless otherwise notified by the Department, interested parties may submit case briefs within 30 days of the date of publication of this notice in accordance with section 351.309(c)(ii) of the Department's regulations. As part of the case brief, parties are encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited. Rebuttal briefs, which must be limited to issues raised in the case briefs, must be filed within five days after the case brief is filed. If a hearing is held, an interested party may make an affirmative presentation only on arguments included in that party's case brief and may make a rebuttal presentation only on arguments included in that party's rebuttal brief. Parties should confirm by telephone the time, date, and place of the hearing within 48 hours before the scheduled time. The Department will issue the final results of this review, which will include the results of its analysis of issues raised in the briefs, not later than 120 days after the date of publication of this notice.
This notice also serves as a preliminary reminder to importers of their responsibility under section 351.402(f) of the Department's regulations to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during these review periods. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.This administrative review and this notice are published in accordance with sections 751(a)(2)(B) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
December 16, 2003.
Vicki Schepker or Carol Henninger at (202) 482-1756 or (202) 482-3003, respectively; 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.
Eurodif S.A. (Eurodif), a French producer of subject merchandise, and its affiliated parties Compagnie Générale Des Matières Nucléaires (COGEMA) and COGEMA, Inc. (collectively, COGEMA/Eurodif), requested an administrative review of the antidumping order on low enriched uranium from France on February 3, 2003. United States Enrichment Corporation and USEC, Inc. (the petitioner), a domestic producer of subject merchandise, requested a review on February 28, 2003. On March 25, 2003, the Department published a notice of initiation of the administrative review, covering the period July 13, 2001, through January 31, 2003, (
We determine that it is not practicable to complete the preliminary results of this review within the revised time limit due to the complex issues that have been raised. Examples of issues that must be considered include the proper treatment of commingled merchandise, the appropriateness of granting a constructed export price (CEP) offset, and the application of the major input rule. Therefore, the Department is extending the time limit for completion of the preliminary results until no later than January 20, 2004. 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 Final Results Antidumping Duty Administrative Review.
On September 29, 2003, the Department of Commerce (the Department) published the preliminary results and partial rescission of antidumping duty administrative review on stainless steel butt-weld pipe fittings from Korea. The review, as initiated, covered three manufacturers/exporters, Sam Sung Stainless Commerce & Ind. Co., Ltd. (Sam Sung), Sungkwang Bend Co., Ltd. (Sungkwang), and TK Corporation. However, along with the preliminary results we rescinded the review with respect to Sungkwang and TK Corporation because the only party that requested a review of these two companies withdrew the request in a timely manner. Therefore these final results of review cover only Sam Sung. The period of review is February 1, 2002 through January 31, 2003. We gave interested parties an opportunity to comment on our preliminary results. We received no comments. Furthermore, the Department made no changes in its analysis following publication of the preliminary results. Therefore, the final results of review are unchanged from those presented in the preliminary results of review.
December 16, 2003.
Fred Baker or Robert James, Enforcement Group III, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-2924 and (202) 482-0649, respectively.
On September 29, 2003 the Department published its preliminary results and partial rescission of antidumping duty administrative review of stainless steel butt-weld pipe fittings from Korea.
The period of review (POR) is February 1, 2002 through January 31, 2003.
The products subject to this review are certain welded stainless steel butt-weld pipe fittings (pipe fittings), whether finished or unfinished, under 14 inches in inside diameter.
Pipe fittings are used to connect pipe sections in piping systems where
Pipe fittings come in a variety of shapes, and the following five are the most basic: “elbows,” “tees,” “reducers,” “stub ends,” and “caps.” The edges of finished fittings are beveled. Threaded, grooved, and bolted fittings are excluded from this review. The pipe fittings subject to this review are classifiable under subheading 7307.23.00 of the Harmonized Tariff Schedule of the United States (HTSUS).
Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of this proceeding is dispositive.
For the reasons set forth in our preliminary results we continue to find that application of an adverse facts available rate of 21.20 percent to Sam Sung is appropriate.
As a result of our determination that it is appropriate to apply adverse facts available to Sam Sung, we determine that a weighted-average dumping margin of 21.20 percent exists for Sam Sung for the period February 1, 2002 through January 31, 2003.
The Department will determine, and U.S. Customs and Border Protection (Customs) shall assess, antidumping duties on all appropriate entries. The Department will issue appropriate assessment 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 the subject merchandise on each entry during the review period.
The following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication, as provided by section 751(a)(1) of the Tariff Act: (1) the cash deposit rate for the reviewed company will be the rate shown above; (2) for previously reviewed or investigated companies not listed above, the cash deposit will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be that established for the most recent period for the manufacturer of the merchandise; and (4) if neither the exporter nor the manufacturer is a firm covered in this review, any previous reviews, or the LTFV investigation, the cash deposit rate will be 21.20 percent, the “all others” rate established in the LTFV investigation.
These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
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 double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results and final rescission in part of the antidumping duty administrative review of certain stainless steel butt-weld pipe fittings from Taiwan.
On July 8, 2003, the Department of Commerce (“Department”) published in the
We gave interested parties an opportunity to comment on the preliminary results. Based upon our analysis of the comments received, we have made changes in the margin calculation. Therefore, the final results differ from the preliminary results of this review. The final weight-averaged dumping margin is listed below in the section titled “Final Results of the Review.”
December 16, 2003.
Jon Freed, Laurel LaCivita or Robert Bolling, Enforcement Group III, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230, telephone 202-482-3818, 202-482-4243, or 202-482-3434, respectively, fax 202-482-0865.
The Department's preliminary results of review were published on July 8, 2003.
The Department is conducting this administrative review in accordance with section 751 of the Act.
The products subject to this administrative review are certain stainless steel butt-weld pipe fittings, whether finished or unfinished, under 14 inches inside diameter. Certain welded stainless steel butt-weld pipe fittings (“pipe fittings”) are used to connect pipe sections in piping systems where conditions require welded connections. The subject merchandise is used where one or more of the following conditions is a factor in designing the piping system: (1) Corrosion of the piping system will occur if material other than stainless steel is used; (2) contamination of the material in the system by the system itself must be prevented; (3) high temperatures are present; (4) extreme low temperatures are present; and (5) high pressures are contained within the system.
Pipe fittings come in a variety of shapes, with the following five shapes the most basic: “Elbows”, “tees”, “reducers”, “stub ends”, and “caps.” The edges of finished pipe fittings are beveled. Threaded, grooved, and bolted fittings are excluded from this review. The pipe fittings subject to this review are classifiable under subheading 7307.23.00 of the Harmonized Tariff Schedule of the United States (“HTSUS”).
Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of this review is dispositive. Pipe fittings manufactured to American Society of Testing and Materials specification A774 are included in the scope of this order.
In the
All issues raised in the case briefs, as well as the Department's findings, in this administrative review are addressed in the
As discussed in more detail in the
A list of the issues which parties have raised and to which we have responded, all of which are in the
• The Department has adjusted the values reported for home market packing and U.S. packing to reflect the minor correction to Ta Chen's packing labor ratio.
• The Department has adjusted the values reported for home market indirect selling expenses for home market sales.
• The Department has included in the indirect expenses incurred in the home market for U.S. sales (“DINDIRSU”) that were reported but not used in the preliminary results of review.
• The Department has adjusted the reported values for marine insurance, harbor maintenance fee, and United States customs duty for one invoice in the U.S. sales listing to reflect a minor correction made at verification.
• The Department has adjusted the U.S. repacking expense and the warehouse expenses for all sales out of TCI inventory to reflect the minor correction made at verification.
• The Department has adjusted the imputed credit expense for U.S. sales that are shipped directly from Taiwan to the unaffiliated customer to reflect changes explained in Comment 7 of the
• The Department has adjusted the U.S. indirect selling expense calculation to include TCI's cost of financing.
We determine that the following percentage weighted-average margin exists for the period June 1, 2001 through May 31, 2002:
The Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated an importer-specific assessment rate for merchandise subject to this review. The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of these final results of review. We will direct the CBP to assess the resulting assessment rates against the entered customs values for the subject merchandise on each of the importer's entries during the review period. For duty assessment purposes, we calculated importer-specific assessment rates by dividing the dumping margins calculated for each importer by the total entered value of sales for each importer during the POR.
In accordance with section 751(a)(1) of the Act, the following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of certain SSBWPF from Taiwan entered, or withdrawn from warehouse, for consumption on or after the date of publication: (1) The cash deposit rate for Ta Chen will be the rate shown above; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original less-than-fair-value (LTFV) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers shall continue to be 51.01 percent.
These deposit requirements shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) 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 (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of the Preliminary Rescission of Antidumping Duty Administrative Review of Stainless Steel Plate in Coils from Taiwan.
On July 1, 2003, the Department of Commerce (“Department”) published a notice of initiation of an antidumping duty administrative review on stainless steel plate in coils from Taiwan.
December 16, 2003.
Catherine Bertrand or Lilit Astvatsatrian, Enforcement Group III, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230, telephone 202-482-3207 or 202-482-6412, respectively.
On May 21, 1999, the Department of Commerce (“Department”) published the antidumping duty order on stainless steel plate in coils from Taiwan.
On July 3, 2003, the Department issued its antidumping duty questionnaire to YUSCO and Ta Chen. On August 19, 2003, Ta Chen stated that it did not have any U.S. sales or exports of subject merchandise during the POR, and requested that it should be excluded from answering the Department's questionnaire. On August 20, 2003, YUSCO stated that it did not have any U.S. sales, shipments or entries of subject merchandise during the POR. On August 21, 2003, petitioners urged the Department to instruct Ta Chen and YUSCO to submit a completed Section A questionnaire response and alleged that Ta Chen and YUSCO are affiliated with other companies that may have shipped subject merchandise to the United States during the POR. On September 8, 2003, we sent an inquiry to U.S. Customs and Border Protection (“CBP”) to confirm that YUSCO and Ta Chen had no shipments of subject merchandise into the United States during the POR. CBP did not indicate that there were any entries of subject merchandise by Ta Chen or YUSCO during the POR.
On March 11, 2003, the Department amended the scope of the antidumping duty orders to remove the original language from the scope which excluded cold-rolled stainless steel plate in coils, in accordance with the Court of International Trade's (“CIT”) decision in
For purposes of this review, the product covered is certain stainless steel plate in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject plate products are flat-rolled products, 254 mm or over in width and 4.75 mm or more in thickness, in coils, and annealed or otherwise heat treated and pickled or otherwise descaled. The subject plate may also be further processed (e.g., cold-rolled, polished,
The merchandise subject to this review is currently classifiable in the Harmonized Tariff Schedule of the United States (HTS) at subheadings: 7219110030, 7219110060, 7219120005, 7219120020, 7219120025, 7219120050, 7219120055, 7219120065, 7219120070, 7219120080, 7219310010, 7219900010, 7219900020, 7219900025, 7219900060, 7219900080, 7220110000, 7220201010, 7220201015, 7220201060, 7220201080, 7220206005, 7220206010, 7220206015, 7220206060, 7220206080, 7220900010, 7220900015, 7220900060, and 7220900080. Although the HTS subheadings are provided for convenience and Customs purposes, the written description of the merchandise under investigation is dispositive.
Effective March 11, 2003, and in accordance with the CIT's December 12, 2002 opinion in
The product covered by these orders is certain stainless steel plate in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject plate products are flat-rolled products, 254 mm or over in width and 4.75 mm or more in thickness, in coils, and annealed or otherwise heat treated and pickled or otherwise descaled. The subject plate may also be further processed (e.g., cold-rolled, polished,
The merchandise subject to this review is currently classifiable in the Harmonized Tariff Schedule of the United States (HTS) at subheadings: 7219.11.00.30, 7219.11.00.60, 7219.12.00.06, 7219.12.00.21, 7219.12.00.26, 7219.12.00.51, 7219.12.00.56, 7219.12.00.66, 7219.12.00.71, 7219.12.00.81, 7219.31.00.10, 7219.90.00.10, 7219.90.00.20, 7219.90.00.25, 7219.90.00.60, 7219.90.00.80, 7220.11.00.00, 7220.20.10.10, 7220.20.10.15, 7220.20.10.60, 7220.20.10.80, 7220.20.60.05, 7220.20.60.10, 7220.20.60.15, 7220.20.60.60, 7220.20.60.80, 7220.90.00.10, 7220.90.00.15, 7220.90.00.60, and 7220.90.00.80. Although the HTS subheadings are provided for convenience and Customs purposes, the written description of the merchandise subject to these orders is dispositive.
The POR is May 1, 2002 through April 30, 2003.
Pursuant to 19 CFR 351.213(d)(3) of the Department's regulations, the Department may rescind an administrative review, in whole or with respect to a particular exporter or producer, if the Secretary concludes that, during the period covered by the review, there were no entries, exports, or sales of the subject merchandise. Both Ta Chen and YUSCO certified on the record that they did not export subject merchandise to the United States during the POR. The Department
Petitioners allege Ta Chen and YUSCO were affiliated with other Taiwanese companies during the POR.
The Department is satisfied, after a review of information on the record, certification from YUSCO and Ta Chen of no exports to the United States during the POR and the inquiry on data from CBP, that there were no entries of Ta Chen and YUSCO's stainless steel plate in coils during the POR to the United States. Therefore, the Department is preliminarily rescinding this administrative review. The cash deposit rate for YUSCO will remain at 8.02 percent, for Ta Chen the cash deposit rate will remain at 10.20 percent, and for “all other” producers/exporters of the subject merchandise the cash deposit rate will remain at 7.39 percent, the rates established in the most recently completed segment of this proceeding.
This administrative review and notice is published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of receipt of application and proposed incidental take authorization; request for comments.
NMFS has received an application from the Lamont-Doherty Earth Observatory (LDEO), a part of Columbia University, for an Incidental Harassment Authorization (IHA) to take small numbers of marine mammals, by harassment, incidental to conducting oceanographic surveys off the northern Yucatan Peninsula in the Gulf of Mexico. Under the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an authorization to LDEO to incidentally take, by harassment, small numbers of several species of cetaceans and pinnipeds for a limited period of time within the next year.
Comments and information must be received no later than January 15, 2004.
Comments on the application should be addressed to P. Michael Payne, Chief, Marine Mammal Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, or by telephoning the contact listed here. A copy of the application containing a list of the references used in this document may be obtained by writing to this address or by telephoning the contact listed here and is also available at:
Kimberly Skrupky, Office of Protected Resources, NMFS, (301) 713-2322, ext 163.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Under section 3(18)(A), the MMPA defines “harassment” as:
any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.
The term “Level A harassment” means harassment described in subparagraph (A)(i). The term “Level B harassment” means harassment described in subparagraph (A)(ii).
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the
On October 8, 2003, NMFS received an application from LDEO for the taking, by harassment, of several species of marine mammals incidental to conducting a seismic survey program. As presently scheduled, a seismic survey will be conducted in the Gulf of Mexico off the northern Yucatan Peninsula. The Gulf of Mexico research cruise will be off the coast of the northern Yucatan Peninsula in an area extending between 21° to 22.5° N and 88° to 91° W from March 7, 2004 to April 4, 2004. The operations will partly take place in the Exclusive Economic Zone (EEZ) of Mexico.
The purpose of the project is to study the Chicxulub Crater. The Chicxulub Crater was formed 65 million years ago when a massive meteor crashed into the Yucatan Peninsula of Mexico leaving behind the crater with a diameter of about 150 km (93 mi). The well-known massive extinction event at the Cretaceous-Tertiary (K-T) boundary appears to have been caused, at least in part, by this impact. It is also the only large terrestrial impact crater with a well preserved topographic peak ring. The Chicxulub Crater is uniquely suited for a seismic investigation into the deformation mechanisms of large diameter impacts in general and the physical parameters of the K-T impact in particular. The goals are to: (1) Determine the direction of approach and angle of the Chicxulub impact through the collaborative seismic and modeling effort, (2) map the deformation recorded in the upper crust near the crater center that may yield important information about the kinematics of large bolide impacts, (3) image the peak ring and other morphologic features in the northwest quadrant of the crater to further understand the physical parameters of the Chicxulub impact structure, and (4) model the 3-D collapse of an asymmetric transient crater to help better understand the mechanics of large impact craters and to quantify the environmental effects of the K-T impact.
The seismic survey will involve one vessel, the
The procedures to be used for the seismic study will be similar to those used during previous seismic surveys by LDEO in the equatorial Pacific Ocean (Carbotte et al., 1998, 2000). The proposed seismic surveys will use conventional seismic methodology, with a towed airgun array as the energy source and a towed hydrophone streamer and/or OBSs as the receiver system. The energy to the airgun array is compressed air supplied by compressors on board the source vessel.
During the airgun operations, the vessel will travel at 7.4-9.3 km/hr (4-5 knots), and seismic pulses will be emitted at intervals of 60-90 sec (OBS lines) and approximately 20 sec Multi-Channel Seismic profiles (MCS lines). The 20-sec spacing corresponds to a shot interval of about 50 m (164 ft). The 60-90 sec spacing along OBS lines is to minimize reverberation from previous shot noise during OBS data acquisition, and the exact spacing will depend on water depth. The 20-airgun array will include airguns ranging in chamber volume from 80 to 850 in3. These airguns will be spaced in an approximate rectangle of dimensions of 35 m (115 ft) across track by 9 m (30 ft) along track.
Along the selected lines, the OBSs will be positioned on the ocean bottom by the
In addition to the operations of the airgun array, the ocean floor will be mapped continuously throughout the entire cruise with an Atlas Hydrosweep DS-2 multibeam 15.5-kHz bathymetric sonar, and a 3.5-kHz sub-bottom profiler. Both of these sound sources will be operated simultaneously with the airgun array.
The Atlas Hydrosweep is mounted on the hull of the
The sub-bottom profiler is normally operated to provide information about the sedimentary features and the bottom topography that is simultaneously being mapped by the Hydrosweep. The energy from the sub-bottom profiler is directed downward by a 3.5 kHz transducer mounted in the hull of the
Additional information on the airgun arrays, bathymetric sonars, and sub-bottom profiler specifications is also contained in the application (see
A detailed description of the Gulf of Mexico near the northern Yucatan Peninsula and its associated marine mammals can be found in the LDEO application and a number of documents referenced in the LDEO application, and is not repeated here. In the Gulf of Mexico near the Yucatan Peninsula, 29 marine mammal species are known to occur within the proposed study area. The species included in this application are the sperm whale (
NMFS' April 14, 2003,
NMFS' current criteria for onset of Level A harassment of cetaceans and pinnipeds from impulse sound are, respectively, 180 and 190 re 1 μPa root-mean-squared (rms). The rms pressure is an average over the pulse duration. The rms level of a seismic pulse is typically about 10 dB less than its peak level (Greene 1997; McCauley et al. 1998, 2000a). The criterion for Level B harassment onset is 160 dB.
Given the proposed mitigation (see Mitigation later in this document), all anticipated takes involve a temporary change in behavior that may constitute Level B harassment. The proposed mitigation measures will minimize the possibility of Level A harassment. LDEO has calculated the “best estimates” for the numbers of animals that could be taken by level B harassment during the proposed seismic survey at the northern Yucatan Peninsula using data on marine mammal abundance from a previous survey region, as shown in the predicted RMS radii table.
These estimates are based on a consideration of the number of marine mammals that might be exposed to sound levels greater than 160 dB, the criterion for the onset of Level B harassment, by operations with the 20-gun array planned to be used for this project. The anticipated radius of influence of the multibeam sonar is less than that for the airgun array, so it is assumed that any marine mammals close enough to be affected by the multibeam sonar would already be affected by the airguns. Therefore, no additional incidental takings are included for animals that might be affected by the multibeam sonar.
The following table explains the corrected density estimates as well as the best estimate of the numbers of each species that would be exposed to seismic sounds greater than 160 dB.
Strong avoidance reactions by several species of mysticetes to seismic vessels have been observed at ranges up to 8 km (4.3 nm) and occasionally as far as 30 km (16.2 nm) from the source vessel. In Arctic waters, some bowhead whales avoided waters within 30 km (16.2 nm) of the seismic operation. However, reactions at such long distances appear to be atypical of other species of mysticetes and, even for bowheads, may only apply during migration.
Odontocete reactions to seismic pulses, or at least those of dolphins, are expected to extend to lesser distances than are those of mysticetes. Odontocete low-frequency hearing is less sensitive than that of mysticetes, and dolphins are often seen in the vicinity of seismic vessels. There are documented instances of dolphins approaching active seismic vessels. However, dolphins as well as some other types of odontocetes will sometimes show avoidance responses and/or other changes in behavior when near operating seismic vessels.
Taking account of the mitigation measures that are planned, effects on cetaceans are generally expected to be limited to avoidance of the area around the seismic operation and short-term changes in behavior, falling within the MMPA definition of Level B harassment.
The numbers of odontocetes that may be harassed by the proposed activities are small relative to the population sizes of the affected stocks. A maximum of 13660, 1481, and 654 bottlenose, Atlantic spotted, and pantropical spotted dolphins, respectively, (the most abundant delphinids in the proposed survey area) are expected to be exposed to seismic sounds greater than or equal to 160 dB. However, the best estimates for bottlenose, Atlantic spotted, and pantropical spotted dolphins are 9107, 988, and 436, respectively. This represents zero to 1.8 percent of the North Atlantic populations of these species based on population estimates. However, these dolphin species surveys have not been conducted for most of their range in the North Atlantic Ocean and adjacent waters. Therefore the true percentages of the populations that might be exposed to seismic sounds greater than or equal to 160 dB are likely to be much less than 1.8 percent, as the population sizes and the zero to 1.8 percent are based on only a small fraction of their range and their actual population sizes are much larger.
In light of the type of take expected and the small percentages of affected stocks, the action is expected to have no more than a negligible impact on the affected species or stocks of marine mammals. In addition, mitigation measures such as controlled vessel speed, course alteration, look-outs, ramp-ups, and power-downs when marine mammals are seen within defined ranges (see Mitigation) should further reduce short-term reactions to disturbance, and minimize any effects on hearing sensitivity.
Pinnipeds are not expected to be encountered during the proposed seismic survey at the northern Yucatan Peninsula in the Gulf of Mexico. However, a conservative estimate of a maximum of 5 hooded seals may be affected by a portion of the proposed survey in the Gulf of Mexico if they are encountered. Responses of pinnipeds to acoustic disturbance are variable, but usually quite limited. If hooded seals were encountered, the proposed seismic survey would have, at most, a short-term effect on their behavior, falling within the definition of Level B harassment. The action would therefore have no more than a negligible impact on the affected species or stocks of pinnipeds.
The following mitigation measures are proposed for the subject seismic surveys, provided that they do not compromise operational safety requirements: (1) Speed and course alteration; (2) power-down and shut-down procedures; and (3) ramp-up procedures. Mitigation also includes marine mammal monitoring in the vicinity of the arrays. These mitigation measures are further described here.
These mitigation measures will incorporate use of established safety radii which are equal to 1.5 times the distance from the arrays where sound levels ≥190 and 180 dB re 1 μPa rms (the criteria for onset of Level A harassment for pinnipeds and cetaceans respectively) are predicted to be received. LDEO has modeled the sound pressure fields for the 20-gun array in relation to distance and direction from the airguns and predicts that the 190-dB and 180-dB distance from the airgun array will be 275 ft (902 m) and 900 ft (2935 m) respectively.
The directional nature of the 20-airgun array to be used in this project is also an important mitigating factor. The airguns comprising these arrays will be spread out horizontally, so that the energy from the arrays will be directed mostly downward, resulting in lower sound levels at any given horizontal distance than would be expected at that distance if the source were omnidirectional with the stated nominal source level. Because the actual seismic source is a distributed sound source (20 guns) rather than a single point source, the highest sound levels measurable at any location in the water will be less than the nominal source level.
If a marine mammal is detected outside the appropriate safety radius and, based on its position and the relative motion, is likely to enter the safety radius, the vessel's speed and/or direct course will be changed in a manner that also minimizes the effect to the planned science objectives. The marine mammal activities and movements relative to the seismic vessel will be closely monitored to ensure that the marine mammal does not approach within the safety radius. If the mammal appears likely to enter the safety radius, further mitigative actions will be taken, i.e., either further course alterations or shutdown of the airguns.
Airgun operations will be powered-down (or shut-down) immediately when cetaceans or pinnipeds are seen within or about to enter the appropriate safety radius. If a marine mammal is detected outside the safety radius but is likely to enter the safety radius, and if the vessel's course and/or speed cannot be changed to avoid having the marine mammal enter the safety radius, the airguns will be powered-down before the mammal is within the safety radius. Likewise, if a mammal is already within the safety zone when first detected, the airguns will be powered-down immediately. If a marine mammal is seen within the appropriate safety radius of the array while the guns are powered-down, airgun operations will be shut-down. For the power-down procedure for the 20-gun array, one 80 in
When airgun operations with the 20-gun array commence after a certain period without airgun operations, the number of guns firing will be increased gradually, or “ramped up” (also described as a “soft start”). Operations will begin with the smallest gun in the array (80 in
The “ramp-up” procedure will be required under the following circumstances. Under normal operational conditions (vessel speed 4 knots, or 7.4 km/hr), a ramp-up would be required after a power-down or shut-down period lasting about 8 minutes or longer if the
Ramp-up will not occur if the safety radius has not been visible for at least 30 min prior to the start of operations in either daylight or nighttime. If the safety radius has not been visible for that 30 minute period (e.g., during darkness or fog), ramp-up will not commence unless at least one airgun has been firing continuously during the interruption of seismic activity.
Comments on past proposed IHAs raised the issue of prohibiting nighttime operations as mitigation. However, this is not practicable due to cost considerations. The daily cost to the federal government to operate vessels such as Ewing is approximately $33,000 to $35,000/day (Ljunngren, pers. comm. May 28, 2003). If the vessels were prohibited from operating during nighttime, it is possible that each trip would require an additional three to five days, or up to $175,000 more, depending on average daylight at the time of work.
Taking into consideration the additional costs of prohibiting nighttime operations and the likely impact of the activity (including all mitigation and monitoring), NMFS has determined that the proposed mitigation ensures that the activity will have the least practicable impact on the affected species or stocks. Marine mammals will have sufficient notice of a vessel approaching with operating seismic airguns (at least one hour in advance), thereby giving them an opportunity to avoid the approaching array; if ramp-up is required after an extended power-down, two marine mammal observers will be required to monitor the safety radii using night vision devices for 30 minutes before ramp-up begins and verify that no marine mammals are in or approaching the safety radii; ramp-up may not begin unless the entire safety radii are visible; and ramp-up may occur at night only if one airgun with a sound pressure level of at least 180 dB has been maintained during interruption of seismic activity. Therefore it is likely that the 20-gun array will not be ramped-up from a shut-down at night.
LDEO must have at least two observers on board the vessel, and at least one must be an experienced marine mammal observer that NMFS approves. These observers will monitor marine mammals near the seismic source vessel during all daytime airgun operations and during any nighttime start-ups of the airguns. During daylight, vessel-based observers will watch for marine mammals near the seismic vessel during periods with shooting (including ramp-ups), and for 30 minutes prior to the planned start of airgun operations after an extended shut-down.
The observers will be on duty in shifts of no longer than 4 hours. The second observer must also be on watch part of the time, including the 30-minute periods preceding startup of the airguns and during ramp-ups. Use of two simultaneous observers will increase the likelihood that marine mammals near the source vessel are detected. LDEO bridge personnel will also assist in detecting marine mammals and implementing mitigation requirements whenever possible (they will be given instruction on how to do so), especially during ongoing operations at night when the designated observers are not on duty.
The observer(s) will watch for marine mammals from the highest practical vantage point on the vessel, which is either the bridge or the flying bridge. On the bridge of the
Observers will not be on duty during ongoing seismic operations at night; bridge personnel will watch for marine mammals during this time and will call for the airguns to be powered-down if marine mammals are observed in or
Comments on past proposed IHAs suggested that NMFS require the use of passive acoustic monitoring, which is generally more effective than visual observations. Shipboard passive acoustics would not allow those on board the vessel to determine a marine mammal's distance from the vessel through triangulation; the vessel operator could determine only that a marine mammal is some unknown distance from the vessel. In order to triangulate on the animal, a system similar to that used in the Gulf of Mexico Sperm Whale Seismic Study (SWSS) in May 2003 is necessary. That passive acoustical monitoring equipment is not the property of LDEO or the Ewing and is not available for the Yucatan cruises. LDEO is presently evaluating the scientific results of the passive sonar from the SWSS trip to determine whether it is practical to incorporate it into future seismic research cruises. NMFS expects a report on this analysis shortly.
LDEO will submit a report to NMFS within 90 days after the end of the cruise, which is predicted to occur on or around April 4, 2004. The report will describe the operations that were conducted and the marine mammals that were detected. The report must provide full documentation of methods, results, and interpretation pertaining to all monitoring tasks. The report will summarize the dates and locations of seismic operations, marine mammal sightings (dates, times, locations, activities, associated seismic survey activities), and estimates of the amount and nature of potential take of marine mammals by harassment or in other ways.
Under section 7 of the ESA, the National Science Foundation(NSF), the agency funding LDEO, has begun consultation on the proposed issuance of an IHA under section 101(a)(5)(D) of the MMPA for this activity. Consultation will be concluded prior to the issuance of an IHA. NSF has initiated consultation with the U.S. Fish and Wildlife Service on West Indian Manatees.
The NSF has prepared an EA for the northern Yucatan Peninsula surveys. NMFS is reviewing this EA and will either adopt it or prepare its own NEPA document before making a determination on the issuance of an IHA. A copy of the NSF EA for this activity is available upon request (see
NMFS has preliminarily determined that the impact of conducting the seismic survey at the northern Yucatan Peninsula in the Gulf of Mexico will result, at worst, in a temporary modification in behavior by certain species of marine mammals. This activity is expected to result in no more than a negligible impact on the affected species or stocks.
While the number of potential incidental harassment takes will depend on the distribution and abundance of marine mammals in the vicinity of the survey activity, the number of potential harassment takings is estimated to be small. In addition, no take by injury and/or death is anticipated, and the potential for temporary or permanent hearing impairment is low and will be avoided through the incorporation of the mitigation measures mentioned in this document. In addition, the proposed seismic program is not expected to interfere with any subsistence hunts, since operations in the whaling and sealing areas will be limited or nonexistent.
NMFS proposes to issue an IHA to LDEO for conducting a seismic surveys at the northern Yucatan Peninsula in the Gulf of Mexico, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. NMFS has preliminarily determined that the proposed activity would result in the harassment of small numbers of marine mammals; would have no more than a negligible impact on the affected marine mammal stocks; and would not have an unmitigable adverse impact on the availability of species or stocks for subsistence uses.
NMFS requests interested persons to submit comments and information concerning this request (see
Proposed collection; comment request.
The United States Patent and Trademark Office (USPTO), 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 February 17, 2004.
Direct all written comments to Susan K. Brown, Records Officer, Office of the Chief Information Officer, Office of Data Architecture and Services, Data Administration Division, (703) 308-7400, U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313, Attn: CPK 3 Suite 310; by e-mail at
Requests for additional information should be directed to the attention of Robert J. Spar, Director, Office of Patent Legal Administration, United States Patent and Trademark Office (USPTO), P.O. Box 1450, Alexandria, VA 22313-1450; by telephone (703) 308-5107; or by e-mail at
In the interest of national security, patent laws and rules place certain limitations on the disclosure of information contained in patents and patent applications and on the filing of applications for patents in foreign countries. When an invention is determined to be detrimental to national security, the Commissioner for Patents at the USPTO must issue a secrecy order and withhold the grant of a patent for such period as the national interest requires. If a secrecy order is applied to an international application, the application will not be forwarded to the
On November 29, 2001 OMB approved a Change Worksheet to adjust the burden estimates for this collection. The USPTO received more submissions than originally estimated; consequently, the responses increased by 332 and the total burden hours for this collection increased by 225 as an administrative adjustment.
In September 2003 the USPTO submitted an information collection package to OMB for review in support of a proposed rulemaking, “Changes to Support Implementation of the United States Patent and Trademark Office 21st Century Strategic Plan” (RIN 0651-AB64). This proposed rulemaking would increase the filing fees for petitions related to foreign licenses in order to more accurately reflect the USPTO's actual cost of processing these petitions. An existing petition, the Petition for Changing the Scope of a License, was not previously covered in this collection as a separate item, but was added to this rulemaking package with its proposed filing fee.
There are no forms associated with this collection of information.
By mail, facsimile, or hand carry when the applicant or agent files a patent application with the USPTO, submits subsequent papers during the prosecution of the application to the USPTO, or submits a request for a foreign filing license for a patent application to be filed abroad before the filing of a United States patent application.
There is a proposed rulemaking information collection currently at OMB under review which, if approved, would add $437,000 in filing fees to this collection for the petitions for the licenses to export. However, since the information collection currently at OMB under review is a proposed rulemaking, the USPTO is using the current filing fee rate of $130 for this submission, for a total of $215,670 in filing fees for the licenses to export. No fees are associated with the secrecy order petitions.
The USPTO estimates that 90 percent (90%) of the petitions in this collection are submitted to the USPTO by facsimile or hand carried because of the quick turnaround required. For the 10 percent (10%) of the public that chooses to submit the petitions in this collection to the USPTO by mail through the United States Postal Service, the USPTO estimates that the average first class postage cost for a mailed submission will be 37 cents. Therefore, the USPTO estimates that up to 167 submissions per year may be mailed to the USPTO at an average first class postage cost of 37 cents, for a total postage cost of $62.
The USPTO estimates that the total non-hour respondent cost burden for this collection in the form of postage costs and filing fees amounts to $215,732.
Comments submitted in response to this notice will be summarized or included in the request for OMB approval of this information collection; they will also become a matter of public record.
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 January 15, 2004.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Melanie Kadlic, 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: 1,000.
Burden Hours: 40,000.
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 Sheila Carey at her e-mail address
Notice reopening application deadline for certain applicants.
The Secretary reopens for a limited purpose the deadline date for grant applications under the HSI Program Fiscal Year 2003 grant competition. The original deadline date was published in the
Ms. Darlene B. Collins, U.S. Department of Education, 1990 K Street, NW., 6th Floor, Washington, DC 20006-8513. Telephone: (202) 502-7576 or via Internet:
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Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Rocky Flats. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meeting be announced in the
Thursday, January 8, 2004, 6 p.m. to 9 p.m.
College Hill Library, Room L211, Front Range Community College, 3705 West 112th Avenue, Westminster, CO.
Ken Korkia, Board/Staff Coordinator, Rocky Flats Citizens Advisory Board, 10808 Highway 93, Unit B, Building 60, Room 107B, Golden, CO, 80403; telephone (303) 966-7855; fax (303) 966-7856.
National Energy Technology Laboratory (NETL), Department of Energy (DOE).
Notice.
Notice is hereby given of an intent to grant to Powerspan Corporation at New Durham, New Hampshire, an exclusive or partially exclusive license to practice the invention described in the U.S. patent number 6,567,092 titled, “Method for Removal of Mercury from Various Gas Streams.” The invention is owned by the United States of America, as represented by the Department of Energy (DOE). The proposed license will be exclusive or partially exclusive, subject to a license and other rights retained by the U.S. Government, and other terms and conditions to be negotiated. DOE intends to grant the license, upon a final determination in accordance with 35 U.S.C. 209(c), unless within 15 days of publication of this notice the Technology Transfer Manager, Department of Energy, National Energy Technology Laboratory, P.O. Box 880, Morgantown, WV 26507-0880, receives in writing any of the following, together with the supporting documents: A statement from any person setting forth reasons why it would not be in the best interest of the United States to grant the proposed license; or, an application for a nonexclusive license to the invention, in which applicant states that it already has brought the invention to practical application or is likely to bring the invention to practical application expeditiously.
Written comments or nonexclusive license applications are to be received at the address listed below no later than fifteen (15) days after the date of this published notice.
Diane Newlon, Technology Transfer Manager, U.S. Department of Energy, National Energy Technology Laboratory, P.O. Box 880, Morgantown, WV 26507-0880.
Diane Newlon, Technology Transfer Manager, U.S. Department of Energy, National Energy Technology Laboratory, P.O. Box 880, Morgantown, WV 26507-0880; Telephone (304) 285-4086; E-mail:
35 U.S.C. 209(c) provides the DOE with authority to grant exclusive or partially exclusive licenses in Department-owned inventions, where a determination can be made, among other things, that the desired practical application of the invention has not been achieved, or is not likely expeditiously to be achieved, under a nonexclusive license. The statute and implementing regulations (37 CFR part 404) require that the necessary determinations be made after public notice and opportunity for filing written objections.
Powerspan Corporation, a small business located at New Durham, New Hampshire, has applied for an exclusive or partially exclusive license to practice the inventions and has a plan for commercialization of the invention.
The proposed license will be exclusive or partially exclusive, subject to a license and other rights retained by the U.S. Government, and subject to a negotiated royalty. The Department will review all timely written responses to this notice, and will grant the license if, after expiration of the 15-day notice period, and after consideration of written responses to this notice, a determination is made, in accordance with 35 U.S.C. 209(c), that the license grant is in the public interest.
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on December 3, 2003, RWE Trading Americas Inc. (RWE Trading) and UBS AG (together, the Applicants) filed a joint application pursuant to section 203 of the Federal Power Act for disposition of all of the wholesale power sales contracts of RWE Trading to UBS AG. The Applicants further request confidential treatment of Exhibits H and I to the application pursuant to section 388.112 of the Commission's rules. The Applicants request that the Commission act on the application so that the transfer may be consummated before January 1, 2004.
Take notice that on December 1, 2003, WFEC GENCO, L.L.C. (GENCO) tendered for filing, (1) an updated market power analysis in compliance with the Commission's order authorizing GENCO to engage in wholesale sales of electric power at market-based rates; and (2) an amendment to its market-based rate tariff to adopt the Commission's new Market Behavior Rules.
Take notice that on December 2, 2003, International Transmission Company and DTE Energy Company tendered a filing in compliance with the November 17, 2003, Commission's Order, 105 FERC ¶ 61,209 (2003).
Take notice that on December 1, 2003, Bank of America, N.A. (Bank of America) tendered for filing First Revised Sheet No. 1 and Original Sheet Nos. 2-3 in compliance with FERC's Order Amending Market-Based Rate Tariffs and Authorizations, Investigation of Terms and Conditions of Public Utility Market-Based Rate Authorizations, 105 FERC ¶ 61,218 (Nov. 17, 2003), and FERC's Order Conditionally Accepting Market-Based Rate Schedule, 101 FERC ¶ 61,098 (Oct. 30, 2002). These sheets contain the “Market Behavior Rules” amendment required by the November 17 Order.
Take notice that on December 2, 2003, The Detroit Edison Company (Detroit Edison) tendered for filing a revised agency agreement between Midwest Independent System Operator, Inc., and Detroit Edison in compliance with Commission's Order, November 17, 2003, 105 FERC ¶ 61,209.
Take notice that on December 2, 2003, MxEnergy Electric Inc. submitted for filing a revised rate schedule, modifying
Take notice that on December 1, 2003, Citigroup Energy Inc. (CEI) submitted for filing a revised rate Schedule, FERC Volume 1, modifying the Market-based rate schedule submitted by CEI on November 19, 2003.
Take notice that on December 3, 2003, AK Electric Supply LLC (AK) filed a supplement to its application for market-based rates as power marketer. AK states that the supplement pertains to an amended and corrected Rate Schedule to comply with FERC Order 614.
Take notice that on December 1, 2003, Xcel Energy Services, Inc. (XES), on behalf of Public Service Company of Colorado (PSC), submitted for filing a Notice of Cancellation of a Power Purchase Agreement between Public Service Company of Colorado and the City of Glenwood Springs.
XES requests that this Notice of Cancellation become effective as of the date of this filing.
Take notice that on December 1, 2003, Central Vermont Public Service Corporation (CVPS) tendered for filing a letter stating that CVPS will not file a Forecast 2004 Cost Report as required under Paragraph Q-2 of Rate Schedule FERC No. 135 (RS-2 Rate Schedule) under which CVPS sells electric power to Connecticut Valley Electric Company Inc. (Customer), its wholly owned subsidiary. CVPS states that:
(1) The Customer is selling its assets and franchise to Public Service of New Hampshire; and (2) CVPS and the Customer are terminating the RS-2 Rate Schedule, all effective January 1, 2004. CVPS further states that since these transactions are highly likely to occur, no service under the RS-2 Rate Schedule will be provided or taken, and thus the filing of a cost report will serve no useful purpose.
CVPS states that copies of the filing were served upon the Customer, the New Hampshire Public Utilities Commission, and the Vermont Public Service Board.
Take notice that on December 1, 2003, Central Vermont Public Service Corporation (CVPS) tendered for filing a letter stating that CVPS will not file a Forecast 2004 Cost Report for FERC Electric Tariff, Original Volume No. 3. CVPS states that no customers will take Tariff No. 3 transmission service during 2002 because such service was terminated effective December 31, 1999. CVPS provides transmission service under its FERC Electric Tariff, First Revised Volume No. 7.
CVPS states that copies of the filing were served upon the Vermont Public Service Board and the New Hampshire Public Utilities Commission.
Take notice that on December 1, 2003, Central Vermont Public Service Corporation (CVPS) tendered for filing a letter stating that CVPS will not file a Forecast 2004 Cost Report for FERC Electric Tariff, Original Volume No. 4, since there are no customers expected to take such service.
CVPS states that a copy of the filing was served upon the Vermont Public Service Board.
Take notice that on December 1, 2003, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) submitted for filing proposed revisions to Attachment J (Timing Requirements) of the Midwest ISO Open Access Transmission Tariff, FERC Electric Tariff, Second Revised Volume No. 1, to implement changes in the timing requirements of Attachment J. The Midwest ISO has requested an effective date of January 30, 2004.
The Midwest ISO states it has electronically served a copy of this filing, with attachments, upon all Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest ISO Advisory Committee participants, as well as all state commissions within the region and in addition, the filing has been electronically posted on the Midwest ISO's Web site at
Take notice that on December 2, 2003, Michigan Electric Transmission Company, LLC (METC) submitted proposed amendments to the following agreements: (1) “Project I Transmission Ownership and Operating Agreement Between Consumers Power Company and Michigan South Central Power Agency,” dated November 20, 1980; (2) “Campbell Unit No. 3 Transmission Ownership and Operating Agreement Between Consumers Power Company and Northern Michigan Electric Cooperative, Inc. and Wolverine Electric Cooperative, Inc.,” dated August 15, 1980; (3) “Campbell Unit No. 3 Transmission Ownership and Operating Agreement Between Consumers Power Company and Michigan Public Power Agency,” dated October 1, 1979; (4) “Belle River Transmission Ownership and Operating Agreement Between Consumers Power Company and Michigan Public Power Agency,” dated December 1, 1982; and (5) “Wolverine Transmission Ownership and Operating Agreement Between Consumers Power Company and Wolverine Power Supply Cooperative, Inc.,” dated July 27, 1992 (collectively, the Customers and the Operating Agreements). METC states that the proposed amendments are intended to revise portions of the Operating Agreements to reflect certain changes necessary as a result of the acquisition of Consumers' transmission system by METC. METC requests an effective date of November 1, 2003, for the proposed amendments.
Take notice that on December 2, 2003, Dominion Retail, Inc. (Dominion Retail), an indirect wholly owned subsidiary of Dominion Resources, Inc. an affiliate of Virginia Electric and Power Company, tendered for filing a rate schedule to engage in wholesale sales at market-based rates and a petition for waivers and blanket approvals under various regulations of the Commission. Dominion Retail states that it included in its filing a proposed code of conduct.
Take notice that on December 2, 2003, the California Independent System Operator Corporation (ISO), tendered for filing a revised Participating Generator Agreement between the ISO and the California Department of Water Resources (CDWR) for acceptance by the Commission. The ISO states that the purpose of this revision is to conform Schedule 1 of the Participating Generator Agreement to the ISO's new format for specification of the technical characteristics of a Generating Unit, and to add certain units and remove certain units from this Schedule.
The ISO states that this filing has been served on CDWR, the California Public Utilities Commission, and all entities that are on the official service list for Docket No. ER99-3413.
The ISO is requesting a waiver of the 60-day prior notice requirement to allow the revised Schedule 1 to be made effective as of June 2, 2003, the date on which CDWR delivered to the ISO the request that the Schedule 1 be revised.
Take notice that on December 2, 2003, the California Independent System Operator Corporation (ISO), tendered for filing a revised Participating Generator Agreement between the ISO and Northern California Power Agency (NCPA) for acceptance by the Commission. The ISO states that the purpose of this revision is to conform Schedule 1 of the Participating Generator Agreement to the ISO's new format for specification of the technical characteristics of a Generating Unit.
The ISO states that this filing has been served on NCPA, the California Public Utilities Commission, and all entities that are on the official service list for Docket No. ER00-2274.
The ISO is requesting a waiver of the 60-day prior notice requirement to allow the revised Schedule 1 to be made effective as of August 22, 2003, the date on which NCPA delivered to the ISO the request that the Schedule 1 be revised.
Take notice that on December 3, 2003, Midwest Independent Transmission System Operator, Inc. (Midwest ISO) pursuant to section 205 of the Federal Power Act and section 35.12 of the Commission's regulations, 18 CFR part 35, submitted for filing an Interconnection and Operating Agreement among Kentucky Utilities Company, the Midwest ISO, and Cannelton Hydroelectric Project, L.P.
Midwest ISO states that a copy of this filing was served on all parties.
Take notice that on December 3, 2003, Midwest Independent Transmission System Operator, Inc. (Midwest ISO) pursuant to section 205 of the Federal Power Act and section 35.12 of the Commission's regulations, 18 CFR 35.12, submitted for filing an Interconnection and Operating Agreement between Wabash Valley Power Association, Inc. and the Midwest ISO.
Midwest ISO states that a copy of this filing was served on Wabash Valley Power Association, Inc.
Take notice that on December 3, 2003, Ameren Services Company (ASC) tendered for filing a Service Agreement for Network Integration Transmission Service Agreement and an associated Network Operating Agreement between ASC and Edgar Electric Cooperative Association, d/b/a EnerStar Power Corp. ASC asserts that the purpose of the Agreements are to permit ASC to provide transmission service to Edgar Electric Cooperative Association, d/b/a EnerStar Power Corp. pursuant to Ameren's Open Access Transmission Tariff.
Take notice that on December 4, 2003, Midwest Independent Transmission System Operator, Inc. (Midwest ISO) pursuant to section 205 of the Federal Power Act and section 35.12 of the Commission's regulations, 18 CFR 35.12, submitted for filing an Interconnection and Operating Agreement among Northern Iowa Windpower II, LLC, the Midwest ISO and Interstate Power and Light Company, a wholly-owned subsidiary of Alliant Energy Corporation.
Midwest ISO states that a copy of this filing was served on all parties.
Take notice, that on December 4, 2003, Southern California Edison Company (SCE) tendered for filing the Service Agreement for Wholesale Distribution Service (Service Agreement) between SCE and the City of Corona, California (Corona). The Service Agreement sets forth SCE's agreement to provide Distribution Service from the ISO Grid at Mira Loma Substation to a proposed new SCE-Corona 12 kV interconnection. SCE requests that the Service Agreement become effective on November 14, 2003.
SCE states that copies of this filing were served upon the Public Utilities Commission of the State of California, and Corona.
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
Environmental Protection Agency (EPA).
Notice of adequacy status.
EPA is announcing that the motor vehicle emission budgets (the budgets) for the Metropolitan Washington, DC One-Hour Ozone Nonattainment Area (the Washington, DC area) identified in the revised 2005 Attainment Demonstration Plan (attainment plan) and the 2005 Rate of Progress (ROP) plan are adequate for transportation conformity purposes. This attainment plan was submitted to EPA by the Commonwealth of Virginia, the State of Maryland and the District of Columbia as State Implementation Plan (SIP) revisions on August 19, 2003, September 2, 2003, and September 5, 2003, respectively. These SIP revision submittals included ROP plans for 2002 and 2005 which also identified motor vehicle emissions budgets. EPA has made findings of adequacy for the budgets of the attainment plan and the 2005 ROP plan for transportation conformity purposes. EPA has taken no action on the budgets identified in the 2002 ROP plan.
The findings that the budgets identified in the attainment plan and 2005 ROP plan are adequate were made in letters dated December 9, 2003 from EPA Region III to the three jurisdictions (DC-MD-VA). These adequacy findings are effective on December 31, 2003.
Martin Kotsch, U.S. EPA, Region III, 1650 Arch Street, Philadelphia, PA 19103 at (215) 814-3335 or by e-mail at
Throughout this document “we,” “ us,” or “our” refer to EPA. The word “budgets” refers to the motor vehicle emission budgets for volatile organic compounds (VOCs) and nitrogen oxides (NO
On March 2, 1999, the DC Circuit Court ruled that motor vehicle emission budgets contained in submitted SIPs cannot be used for conformity determinations until EPA has affirmatively found them adequate.
The Commonwealth of Virginia, the State of Maryland and the District of Columbia formally submitted identical SIP revisions to EPA on August 19, 2003, September 2, 2003 and September 5, 2003, respectively, consisting of a revised 2005 attainment plan and initial 2002 and 2005 Rate ROP plans for the Washington, DC area. On September 10, 2003, we posted the availability of the plans and their identified budgets on our conformity Web site for the purpose of soliciting public comment on the adequacy of the budgets. EPA's public comment period closed on October 10, 2003. We received comments from the Sierra Club.
On December 9, 2003, EPA Region III sent a letter to each of the three jurisdictions (DC-MD-VA) that constituted final Agency action on the adequacy of the motor vehicle emission budgets contained in the revised attainment plan and in the 2005 ROP plan. That action was EPA's finding that the budgets identified in the revised attainment plan and 2005 ROP plan for the Washington, DC area are adequate for transportation conformity purposes. As a result of our December 9, 2003 findings, the budgets contained in the revised 2005 attainment plan and the 2005 ROP plan for the Washington, DC area may be used for future conformity determinations. The 2002 ROP plan submitted as part of the SIP revision by the three jurisdictions showed a shortfall in the level of VOC emissions reductions required to demonstrate ROP. EPA has taken no action with regard to the adequacy of the budgets identified in the 2002 ROP plan because we understand that the states are revising that 2002 ROP plan to reflect that there is, in fact, no VOC shortfall for the 2002 milestone year. EPA has, therefore, made findings of adequacy only for the budgets identified in the revised attainment plan and the budgets identified in the 2005 ROP plan. These budgets will be needed for conformity and transportation planning.
This is an announcement of adequacy findings that we made on December 9, 2003. The effective date of these findings is December 31, 2003. These findings will also be announced on EPA's Web site:
Transportation conformity is required by section 176 of the Clean Air Act. EPA's conformity rule requires that transportation plans, programs, and projects conform to SIPs and establishes the criteria and procedures for determining whether or not they do so. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards. The criteria by which we determine whether a SIP's budgets are adequate for conformity purposes are outlined in 40 CFR 93.118 (e)(4) through (5).
Please note that these adequacy findings for the budgets identified in the revised attainment plan and 2005 ROP plan are separate from EPA's completeness determination of the revised SIP submission, and separate from EPA's action to approve or disapprove the revised SIP. Even though we have found the motor vehicle emission budgets of the Washington, DC area's revised 2005 attainment plan and 2005 ROP plan adequate, and they are replacing the previously approved budgets, those motor vehicle emission budgets contained in the revised attainment plan and 2005 ROP plan still have to be approved or disapproved.
Environmental Protection Agency (EPA).
Notice.
The U.S. Environmental Protection Agency announces the availability of the “Border 2012: U.S.-Mexico Environmental Program” Framework Document (Border Plan or Border 2012). Border 2012 is a 10-year, binational, results-oriented, environmental program for the U.S.-Mexico border region, which has been developed by EPA, Secretari
The proposed Border 2012 Program was announced in Mexico and in the U.S.
The proposed Border 2012 emphasizes a bottom-up approach, anticipating that local decision-making, priority-setting and project implementation will best address environmental issues in the border region. The new Border 2012 Program builds upon the successes achieved under Border XXI while also establishing a regionally-focused border plan to facilitate environmental priority setting and planning at the regional and local levels. Border 2012 will emphasize concrete measurable results, public participation, transparency, and timely access to environmental information.
Border 2012 is organized around coordinating bodies. These coordinating bodies include National Coordinators, four Regional (geographically-focused) Workgroups, three Border-wide Workgroups, and three Policy Forums.
Consistent with the requirements of the La Paz Agreement, the National Coordinators will monitor and manage implementation of the Border 2012 Program and ensure cooperation and communication among all coordinating bodies.
Providing the foundation of the Border 2012 Program, four multi-media, regionally focused workgroups will support the efforts of local Task Forces and coordinate activities at the regional and local level. The Regional Workgroups are the following: California-Baja California, Arizona-Sonora, New Mexico-Texas-Chihuahua, and Texas-Coahuila-Nuevo Leon-Tamaulipas.
Border-wide Workgroups will concentrate on issues that are multi-regional and primarily federal in nature. Three Border-wide Workgroups will have federal U.S. and Mexican co-chairs for the following issues: environmental health, emergency preparedness and response, and cooperative enforcement and compliance.
Policy Forums will have a media-specific focus and will concentrate on broad policy issues that require an on-going dialogue between the U.S. and Mexico in the following areas: air; water; hazardous waste, solid waste, and toxic substances.
Border 2012 Coordinating Bodies will be broad-based and will include representation from local communities from both sides of the border, including non-governmental or community-based organizations; academic institutions; local, state, and U.S. tribal representatives; and binational organizations.
Border 2012 establishes the following six border-wide environmental goals for the U.S.-Mexico border region: reduce water contamination; reduce air pollution; reduce land contamination; improve environmental health; reduce exposure to chemicals as a result of accidental chemical release and/or acts of terrorism; and improve environmental performance through compliance, enforcement, pollution prevention, and promotion of environmental stewardship.
For further information on Border 2012, please contact: EPA El Paso Border Office at 915-533-7273 or 800-334-0741 or EPA San Diego Border Office at 619-235-4765 or 800-334-0741. Hard copies of the Border 2012 Framework document can be obtained by calling 1-800-490-9198 or accessing
Council on Evironmental Policy.
Notice of public meeting.
The Rocky Mountain Regional NEPA Roundtable will be held on January 8 and 9, 2004. The Council on Environmental Quality (CEQ) established a National Environmental Policy Act (NEPA) Task Force to review the current NEPA implementing practices and procedures in the following areas: Technology and information management; Federal and intergovernmental collaboration; programmatic analyses and subsequent tiered documents; and adaptive management and monitoring. In addition, the NEPA Task Force reviewed other NEPA implementation issues such as the level of detail included in agencies' procedures and documentation for promulgating categorical exclusions; the structure and documentation of environmental assessments; and other implementation practices that would benefit Federal agencies.
“The Task Force Report to the Council on Environmental Quality—Modernizing NEPA Implementation” was published and presented to CEQ on September 24, 2003. The Report contains recommendations designed to improve federal agency decision making by modernizing the NEPA process. To further the work of the NEPA Task Force, CEQ is holding a series of regional public roundtables to raise public awareness of the NEPA Task Force draft recommendations and
The Rocky Mountain regional public roundtable will be held on January 8 and 9, 2004. The January 8 session will begin at 9 a.m. and interested members of the public will have an opportunity to present their views at 3:30 p.m. following the roundtable discussion. That session will end in the evening after public views have been presented. The session on January 9 will begin at 9 a.m. and interested members of the public will have and oportunity to present their views at 11 a.m. following the roundtable discussion.
Interested parties can review the Task Force report via the CEQ Web site at
Federal Communications Commission.
Notice; Order to show cause.
This document is an order in which the Enforcement Bureau of the Federal Communications Commission requests a hearing proceeding before a Commission administrative law judge to determine whether Roger Thomas Scaggs, the licensee of W5EBC Amateur Radio Station and Advanced Class Operator license, is qualified to remain a Commission licensee in light of his 1998 felony conviction for murder and whether his authorization should be revoked.
Effective December 22, 2003.
Gary Oshinsky, (202) 418-7167 or e-mail
This is a summary of the
1. Approximately six months after the Commission granted Mr. Scaggs' subject amateur radio license, on November 16, 1998, he was convicted for the March 6, 1996, murder of Penny Scaggs, his wife of thirty-five years. The record in that case showed that Mr. Scaggs beat to death his wife with a galvanized lead pipe and then stabbed her several times in their home. Mr. Scaggs was convicted and sentenced by the jury to a prison term of thirty-two (32) years, and he was fined Ten Thousand Dollars ($10,000.00). His conviction was affirmed and his request for rehearing overruled on June 22, 2000.
2. Accordingly, section 312(a) (2) of the Communications Act of 1934, as amended (the “Act”), provides that the Commission may revoke any license on the basis of “conditions coming to the attention of the Commission which would warrant it in refusing to grant a license or permit on the original application.” Among the factors that the Commission considers in its review of applications to determine whether the applicant has the requisite qualifications to operate the station for which authority is sought is the character of the applicant. Before revoking a license, the Commission must serve the licensee with an order to show cause why revocation should not issue and must provide the licensee with an opportunity for hearing.
3. In assessing character qualifications in broadcast licensing matters, the Commission considers, as relevant, “evidence of any conviction for misconduct constituting a felony.” The Commission believes that “[b]ecause all felonies are serious crimes, any conviction provides an indication of an applicant's or licensee's propensity to obey the law” and to conform to provisions of both the Act and the agency's rules and policies. The Commission has consistently applied these broadcast character standards to applicants and licensees in the Amateur Radio Service. Thus, very serious felonies raise potential questions regarding an amateur licensee's qualifications.
4. Here, Mr. Scaggs' murder conviction raises very serious questions as to whether he possesses the requisite character qualifications to be and to remain a Commission licensee and whether his captioned license should be revoked. For this reason, we are designating the matter for hearing before a Commission administrative law judge.
5. Pursuant to sections 312(a) and (c) of the Act, and authority delegated pursuant to §§ 0.111, 0.311, and 1.91(a) of the Commission's rules, Roger Thomas Scaggs is hereby Ordered to Show Cause why his authorization for Amateur Radio Advanced Class License W5EBC should not be revoked. Roger Thomas Scaggs shall appear before an administrative law judge at a time and place to be specified in a subsequent order and provide evidence upon the following issues:
i. To determine the effect of Roger Thomas Scaggs' felony conviction on his qualifications to be and to remain a Commission licensee; and
ii. To determine, in light of the evidence adduced pursuant to the foregoing issue, whether Roger Thomas Scaggs is qualified to be and to remain a Commission licensee and whether his Amateur Radio Advanced Class License W5EBC should be revoked.
6. Pursuant to section 312(c) of the Act and 1.91(c) of the Commission's rules, to avail himself of the opportunity to be heard and the right to present evidence in the hearing in this proceeding, Roger Thomas Scaggs, in
7. Pursuant to 1.92(c) of the Commission's rules, if Roger Thomas Scaggs fails to timely file a written appearance within the thirty (30)-day period, or has not filed a petition to accept, for good cause shown, a written appearance beyond the expiration of the thirty (30)-day period, the right to a hearing shall be deemed to be waived. Where a hearing is waived, the presiding administrative law judge shall, at the earliest practicable date, issue an order terminating the hearing proceeding and certifying the case to the Commission.
8. Pursuant to section 312(d) of the Act and § 1.91(d) of the Commission's rules, the burden of proceeding with the introduction of evidence and the burden of proof with respect to both of the issues specified above shall be on the Enforcement Bureau.
9. The
10. The Secretary of the Commission shall cause to have this
Thursday, December 18, 2003 at 10 a.m.
999 E Street, NW., Washington, DC (Ninth Floor).
This meeting will be open to the public.
The following item has been added to the agenda: Enforcement Treasurer Policy—Official and Personal Capacities.
Ron Harris, Press Officer, Telephone (202) 694-1220.
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 December 30, 2003.
Board of Governors of the Federal Reserve System, December 10, 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 December 30, 2003.
Board of Governors of the Federal Reserve System, December 10, 2003.
Office of the Secretary.
Notice of meeting.
The Advisory Committee on Blood Safety and Availability will meet to examine the role of the Federal Government in the distribution of the nation's blood supply. The meeting will be entirely open to the public.
The Advisory Committee on Blood Safety and Availability will meet on Wednesday, January 28 and Thursday, January 29, 2004 from 8 a.m. to 5 p.m.
The meeting will take place at the Grand Hyatt Washington Hotel, 1000 H Street NW., Washington, DC 20001.
CAPT Lawrence C. McMurtry, Deputy Executive Secretary, Advisory Committee on Blood Safety and Availability, Department of Health and Human Services, Office of Public Health and Science, 1101 Wootton Parkway, Suite 250, Rockville, MD 20852, (301) 443-2331, FAX (301) 443-4788, e-mail
Public comment will be solicited at the meeting. Public comment will be limited to five minutes per speaker. Those who wish to have printed material distributed to Advisory Committee members should submit thirty (30) copies to the Executive Secretary prior to close of business January 16, 2004. Those who wish to utilize electronic data projection in their presentation to the Committee must submit their material to the Executive Secretary prior to close of business January 16, 2004. In addition, anyone planning to comment is encouraged to contact the Executive Secretary at her/his earliest convenience.
Health and Human Services, HHS.
Notice.
The Department of Health and Human Services (HHS) is extending the period for comments on revised Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons through January 6, 2004. This revised guidance was issued pursuant to Executive Order 13166.
The deadline for comments is extended to January 6, 2004.
Comments should be addressed to Deeana Jang with “Attention: LEP Comments,” and should be sent to 200 Independence Avenue, SW., Room 506F, Washington, DC 20201. Comments may also be submitted by e-mail at
Deeana Jang, 202-619-1795.
In the notice document 03-20179 beginning on page 47311 in the issue of Friday, August 8, 2003, HHS announced an extended 120 day comment period, “to encourage comment from the public and from recipients regarding experience in applying the revised guidance.” However, that notice incorrectly identified January 6, 2004, as the end of the comment period. This was corrected in notice document C3-20179 on page 49843 in the issue of Tuesday, August 19, 2003, which identified the correct date as December 8, 2003. In comments received by the Department by December 8, concerns were raised that confusion about the close of the 120 day comment period may inadvertantly foreclose consideration of submissions made by commenters relying on the January 6, 2004 date. To avoid any such confusion, the Department will hold open the comment period through January 6, 2004, for comments received by the Department through that date.
Agency for Healthcare Research and Quality, HHS.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) allow the proposed information collection project: “National Children's Study Pilot: Primary Care Practice-Based Research Networks (PBRNs).” In accordance with the Paperwork Reduction Act of 1995, Public Law 1004-13 (44 U.S.C. 3506(c)(2)(A)), AHRQ invites the public to comment on this proposed information collection.
Comments on this notice must be received by February 17, 2004.
Written comments should be submitted to: Cynthia D. McMichael, Reports Clearance Officer, AHRQ, 540 Gaither Road, Room #5022, Rockville, MD 20850.
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Cynthia D. McMichael, AHRQ, Reports Clearance Officer, (301) 427-1651.
National Children's Study pilot project to determine feasibility of NCS data collection in Primary Care Practices.''
The project is being conducted in response to a modification of an AHRQ RFP entitled “Recourse Center for Primary Care Practice-Based Research Networks (PBRNs)” (issued under Contract 290-02-0008). In January 2003 AHRQ requested that the PBRN Resource Center assess the potential for PBRNs to participate in the National Children's Study (NCS).
In 2000, Congress passed the Children's Health Act, authorizing an unprecedented study of the impact of the environment on children's health.
The goal of the NCS is to identify sufficient numbers of women of childbearing age to enroll 100,000 pregnant women into the NCS early in gestation, and then to enroll and follow their children through 21 years of age.
A key design issue for the NCS is the manner in which participants will be recruited and enrolled into the study. Previous research states that a well-established relationship between the researcher and the subject, convenient study location and active community ties bolster recruitment success and the likelihood of a parent to enroll their child in longitudinal studies. PBRNs
Recognizing this, AHRQ requested that the Resource Center participate in the design of a pilot study of PBRNs' ability to participate in the NCS. The proposed NCS pilot study will test the ability of PBRNs to collect, process, and manage data similar to that which is expected to be collected and processed in the NCS. This pilot study will allow the Resource Center to determine the factors that enable or hinder the collection of such data at primary care practices, as well as make an overall determination of the feasibility of PBRN practices' participation in the NCS.
The pilot study will involve use of in-person interviews, developmental assessments of children, self-administered parent/guardian questionnaires, and physical exams including the collection of urine. The pilot study will evaluate the feasibility of having PBRNs participate in the NCS using several indicators:
The ability of practices to use self-administered questionnaires to collect and manage the medical and dietary history data of pregnant women and of children ages 1 and 5;
The ability of practices to effectively collect and manage data from a physical examination of study subjects (including health status and urine collection);
The ability of practices to facilitate a developmental assessment of children conducted at age one and age five;
The amount of burden data collection places on practices;
The characteristics of successful and unsuccessful practices in the study;
The ease of data collection across different patient populations and data collection modes and;
To make the necessary determinations, assessments and surveys will be conducted with PBRN practice patients as well as with a small number of patients who ordinarily receive care elsewhere, and PBRN staff will also be surveyed.
The data will be collected from 36 practices per respondent category, meaning 36 practices will collect data on pregnant women, 36 practices will collect data on children aged 1 and 5. It is expected that some practices will collect data on more than one respondent group. Each practice will recruit 14 patients per respondent group using convenience sampling procedures. A total of 504 pregnant women and 504 children and their parents (half will be 1 year old and half will be 5 years old) will be involved in the data collection. Because a small proportion (20%) of patients will be asked to visit another practice participating in the pilot study in order to test the ability of practices to collect and manage data on non-member patients, the NCS will require some providers to collect data on some patients they do not normally care for.
The method of data collection for the patient assessment includes self-administered questionnaires, physical examination, and collection of a urine sample. The practice will contact potential participants through a mailing and a phone call. Non-respondents will not be contacted again.
The total cost to the government for activities directly related to this data collection is estimated to be $780,411.
In accordance with the above cited legislation, comments on the AHRQ information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of functions of AHRQ, including whether the information will have practical utility; (b) the accuracy of the AHRQ's estimate of 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 upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of the proposed information collection. All comments will become a matter of public record.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Requirements for Submission of Labeling for Human Prescription Drugs and Biologics in Electronic Format” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Karen Nelson, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1482.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Guidance for Industry: Submitting and Reviewing Complete Responses to Clinical Holds” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Karen Nelson, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1482.
In the
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 February 17, 2004.
Submit electronic comments on the collection of information to:
Peggy Robbins, Office of Management Programs (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 these topics: (1) Whether the proposed collection of information is necessary for the proper performance
Section 510(k) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360(k)) requires a person who intends to market a medical device to submit a 510(k) submission to FDA at least 90 days before proposing to begin the introduction, or delivery for introduction into interstate commerce, for commercial distribution of a device intended for human use. The definition of “person” has been expanded to include hospitals who re-use or re-manufacture single-use medical devices. The Medical Device User Fee and Modernization Act of 2002 (MDUFMA) (Public Law 107-250), added section 510(o) to the act to establish new regulatory requirements for reprocessed single-use devices (SUDs) (MDUFMA section 302(b), the act section 510(o)). MDUFMA was signed into law on October 26, 2002. Section 301(b) of MDUFMA adds new requirements for reprocessed SUDs to section 510 of the act. The estimated submissions below include those submitted by hospitals re-manufacturing single-use medical devices.
Section 510(k) of the act allows for exemptions to the 510(k) submissions, i.e., a 510(k) submission would not be required if FDA determines that premarket notification is not necessary for the protection of the public health, and they are specifically exempted through the regulatory process. Under 21 CFR 807.85 “Exemption from premarket notification,” a device is exempt from premarket notification if the device intended for introduction into commercial distribution is not generally available in finished form for purchase and is not offered through labeling and advertising by the manufacturer, importer, or distributor for commercial distribution. In addition, the device must meet one of the following conditions: (1) It is intended for use by a patient or dentist (or other specially qualified persons), or (2) it is intended solely for use by a physician or dentist and is not generally available to other physicians or dentists.
A commercial distributor who places a device into commercial distribution for the first time under their own name and a repackager who places their own name on a device and does not change any other labeling or otherwise affect the device, shall be exempted from premarket notification if the device was legally in commercial distribution before May 28, 1976, or a premarket notification was submitted by another person.
One of MDUFMA's provisions requires the submission of validation data specified in the statute for certain reprocessed SUDs (as identified by FDA) such as cleaning and sterilization data, and functional performance data. FDA offers a guidance document to assist reprocessors of single use devices in submitting MDUFMA mandated validation data for the devices.
MDUFMA requires that FDA review the types of reprocessed SUDs not subject to premarket notification requirements and identify which of these devices require the submission of validation data to ensure their substantial equivalence to predicate devices. MDUFMA also requires that FDA review critical and semi-critical reprocessed SUDs that are currently exempt from premarket notification requirements and determine which of these devices require the submissions of 510(k)s to ensure their substantial equivalence to predicate devices. Under MDUFMA, FDA will use the validation data submitted for a reprocessed SUD to determine whether the device will remain substantially equivalent in terms of safety and effectiveness to its predicate after the maximum number of times the device is reprocessed as intended by the person submitting the premarket notification.
The information collected in a premarket notification is used by the medical, scientific, and engineering staffs of FDA in making determinations as to whether or not devices can be allowed to enter the U.S. market. The premarket notification review process allows for scientific and/or medical review of devices, subject to section 510(k) of the act, to confirm that the new devices are as safe and as effective as legally marketed predicate devices. This review process, therefore, prevents potentially unsafe and/or ineffective devices, including those with fraudulent claims, from entering the U.S. market. This information will allow FDA to collect data to ensure that the use of the device will not present an unreasonable risk for the subject's rights. The respondents to this information collection will primarily be medical device manufacturers and businesses.
FDA Form 3514 was developed to assist respondents in categorizing 510(k) data for submission to FDA. This form also assists respondents in organizing and submitting data for other FDA medical device programs such as premarket approval applications, investigational device exemptions, and humanitarian device exemptions.
FDA estimates the burden of this collection of information to be as follows:
FDA has based these estimates on conversations with industry and trade association representatives, and from internal review of the documents listed in tables 1 and 2 of this document.
The total burden for using voluntary FDA Form 3514 is estimated to be approximately 1,000 hours and has been included in this collection of information. Once this collection of information has been approved, the burden for FDA Form 3514 will be reported and approved in each of the following OMB information collections: (1) Investigational device exemption reports and records (OMB control number 0910-0078), (2) premarket approval of medical devices (OMB control number 0910-0231), and (3) medical devices, humanitarian devices (OMB control number 0910-0332).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal property.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the Center for Scientific Review Special Emphasis Panel, December 19, 2003, 1 p.m. to December 19, 2003, 3 p.m., National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD, 20892 which was published in the
The meeting will be held December 18, 2003. The time and location remain the same. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Notice is hereby given of a change in the meeting of the Center for Scientific Review Special Emphasis Panel, December 11, 2003, 2 p.m. to December 11, 2003, 3 p.m., National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892 which was published in the
The meeting will be held December 17, 2003, from 1 p.m. to 2 p.m. The location remains the same. The meeting is closed to the public.
Notice is hereby given of a change in the meeting of the Center for Scientific Review Special Emphasis Panel, December 10, 2003, 2 p.m. to December 10, 2003, 3 p.m., National Institute of Health, 6701 Rockledge Drive, Bethesda, MD 20892 which was published in the
The meeting will be held December 17, 2003. The time and location remains the same. The meeting is closed to the public.
Notice is hereby given of a change in the meeting of the Center for Scientific Review Special Emphasis Panel, December 9, 2003, 12 p.m., to December 9, 2003, 1 p.m., National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD, 20892 which was published in the
The meeting will be held December 12, 2003, from 10 a.m. to 11 a.m. The location remains the same. The meeting is closed to the public.
Notice is hereby given of a change in the meeting of the Center for Scientific Review Special Review Special Emphasis Panel, December 19, 2003, 3 p.m. to December 19, 2003, 5 p.m., National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD, 20892 which was published in the
The meeting will be held December 16, 2003, from 1 p.m. to 3 p.m. The location remains the same. The meeting is closed to the public.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (301) 443-7978.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
For the Federal fiscal years 2005—2007 Community Mental Health Services Block Grant application cycles, SAMHSA will provide States with revised application guidance and instructions. Proposed revisions to the previously approved application include: (1) Additional introductory text on the history and goals of federal mental health funding and an orientation to the transition to Performance Partnerships Grants, (2) changes in the format of the plan, and (3) the introduction of ten performance indicators as CMHS Core Performance Indicators. With the exception of one indicator, all are currently reported through the Uniform Reporting System (URS) and will not increase the State's burden; one indicator is currently in developmental status and beginning in FY 2004, States were given three years to develop capacity to report data for this indicator. The following table summarizes the annual burden for the revised application.
Send comments to Nancy Pearce, SAMHSA Reports Clearance Officer, Room 16-105, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857. Written comments should be received within 60 days of this notice.
Department of Homeland Security, Bureau of Immigration and Customs Enforcement, and Bureau of Citizenship and Immigration Services.
Notice.
This notice announces the appointment of the members of the Bureau of Immigration and Customs Enforcement (ICE), and the Bureau of Citizenship and Immigration Services (CIS) Performance Review Boards (PRBs) under 5 U.S.C. 4314(c)(4). The purpose of the PRBs is to review performance appraisals for senior executives and to recommend to the appointing authority proposed performance ratings, bonuses, and other related personnel actions.
This notice is effective December 16, 2003.
C. Rick Hastings, Director, Workforce and Information Management, 800 K Street, NW., Suite 5000, Washington, DC 20536, Telephone (202) 514-3636.
There are two PRBs, one in ICE and the other in CIS.
The purpose of this Board is to review the performance appraisals and proposed related personnel actions for senior executives who report to the Assistant Secretary, ICE. The members are: Joseph Mancias, Janis Sposato, Joseph Langlois, Terrance O'Reilly, Dea Carpenter, Andrea Quarantillo, and David R. Howell.
The purpose of this Board is to review the performance appraisals and proposed related personnel actions for all senior executives who report to the Director, CIS: The members are: Anthony Tangeman, Charles DeMore, Joseph Greene, J. Scott Blackman, John Chase, Grace Mastalli, and Paul Ladd.
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice and request for comments.
The Federal Emergency Management Agency, 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 continuing information collections. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(A)), this notice seeks comments concerning the information collection outlined in 44 CFR Part 61, as it pertains to application for National Flood Insurance Program (NFIP) insurance.
The National Flood Insurance Program (NFIP) is authorized by Public Law 90-448 (1968) and expanded by Public Law 93-234 (1973). The National Flood Insurance Act of 1968 requires that the Federal Emergency Management Agency (FEMA) provide flood insurance at full actuarial rates reflecting the complete flood risk to structures built or substantially improved on or after the effective date for the initial Flood Insurance Rate Map (FIRM) for the community, or after December 31, 1974, whichever is later, so that the risks associated with buildings in flood-prone areas are borne by those located in such areas and not by the taxpayers at large. In accordance with Public Law 93-234, the purchase of flood insurance is mandatory when Federal or federally related financial assistance is being provided for acquisition or construction of buildings located, or to be located, within FEMA-identified special flood hazard areas of communities that are participating in the NFIP. When flood damage occurs to insured property, information is collected to report, investigate, negotiate and settle the claim.
Interested persons should submit written comments to Muriel B. Anderson, Chief, Records Management Branch, Federal Emergency Management Agency, 500 C Street, SW., Room 316, Washington, DC 20472, or e-mail address:
For additional information contact James S.P. Shortley, Director of Claims, Mitigation Division, Risk Insurance Branch at (202) 646-3418. Contact Ms. Anderson for copies of the proposed collection of information.
Office of the Secretary, National Invasive Species Council, Department of the Interior.
Request for Nominations for the Invasive Species Advisory Committee.
This is a republication of the notice published December 1, 2003 (68 FR 67202). It contains a correction to the date for nominations.
The U.S. Department of the Interior, on behalf of the interdepartmental National Invasive Species Council, proposes to appoint new members to the Invasive Species Advisory Committee (ISAC). The Secretary of the Interior, acting as administrative lead, is requesting nominations for qualified persons to serve as members of the ISAC.
Nominations must be received by January 15, 2004.
Nominations should be sent to Lori Williams, Executive Director, National Invasive Species Council (OS/SIO/NISC), 1849 C Street NW., Washington, DC 20240.
Kelsey Brantley, Program Analyst, at (202) 513-7243, fax: (202) 371-1751, or by e-mail at
The purpose and role of the ISAC are to provide advice to the Invasive Species Council (Council), as authorized by Executive Order 13112, on a broad array of issues including preventing the introduction of invasive species, providing for their control, and minimizing the economic, ecological, and human health impacts that invasive species cause. The Council is Co-chaired by the Secretaries of the Interior, Agriculture, and Commerce. The duty of the Council is to provide national leadership regarding invasive species issues. Pursuant to the Executive Order, the Council developed a National Invasive Species Management Plan. The Plan is available on the Web at
The role of ISAC is to maintain an intensive and regular dialogue regarding the aforementioned issues. ISAC provides advice in cooperation with stakeholders and existing organizations addressing invasive species. The ISAC meets up to four (4) times per year.
Terms for approximately half of the current members of the ISAC will expire in March 2004. Current members of the ISAC are eligible for reappointment. The Secretary of the Interior will appoint members to ISAC in consultation with the Secretaries of Agriculture and Commerce. The Secretary of Interior actively solicits new nominees to the ISAC. Members of ISAC should be
Members should also have practical experience in one or more of the following areas: representing sectors of the national economy that are significantly threatened by biological invasions (
Members of the ISAC and its subcommittees serve without pay. However, while away from their homes or regular places of business in the performance of services of the ISAC, members shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the government service, as authorized by section 5703 of Title 5, United States Code.
Nominations should be typed and should include the following:
1. A brief summary of no more than two (2) pages explaining the nominee's suitability to serve on the ISAC.
2. A resume or curriculum vitae.
3. At least two (2) Letters of reference.
Nominations should be sent no later than January 15, 2004, to Lori Williams, National Invasive Species Council (OS/SIO/NISC), 1849 C Street NW., Washington, DC 20240.
To ensure that recommendations of the ISAC take into account the needs of the diverse groups served, the Department of the Interior is actively soliciting nominations of qualified minorities, women, persons with disabilities and members of low income populations.
Fish and Wildlife Service, Interior.
Notice of availability and receipt of application.
This notice advises the public that Elizabeth Cross Roads LLC (Applicant) has applied to the U.S. Fish and Wildlife Service (Service) for an incidental take permit pursuant to section 10(a)(1)(B) of the Endangered Species Act (Act) of 1973, as amended. The proposed permit would authorize the incidental take of the Preble's meadow jumping mouse (
We announce the receipt of the Applicant's incidental take permit application, which includes a combined Environmental Assessment/Habitat Conservation Plan (EA/HCP) for the Preble's for the Elizabeth Cross Roads Property. The proposed EA/HCP is available for public review and comment. It fully describes the proposed project and the measures the Applicant would undertake to minimize and mitigate project impacts to the Preble's.
The Service requests comments on the EA/HCP and associated documents for the proposed issuance of the incidental take permit. All comments on the EA and permit application will become part of the administrative record and will be available to the public. We provide this notice pursuant to section 10(a) of the Act and the National Environmental Policy Act regulations (40 CFR 1506.6).
Written comments on the permit application and EA/HCP should be received on or before February 17, 2004.
Comments regarding the permit application and EA/HCP should be addressed to Susan Linner, Field Supervisor, U.S. Fish and Wildlife Service, Colorado Field Office, 755 Parfet Street, Suite 361, Lakewood, Colorado 80215. Comments also may be submitted by facsimile to (303) 275-2371.
Ms. Kathleen Linder, Fish and Wildlife Biologist, Colorado Field Office, telephone (303) 275-2370.
Individuals wishing copies of the EA/HCP and associated documents for review should immediately contact the above office. Documents also will be available for public inspection, by appointment, during normal business hours at the above address.
Section 9 of the Act and Federal regulations prohibit the “take” of a species listed as endangered or threatened. Take is defined under the Act, in part, as to kill, harm, or harass a federally listed species. However, the Service may issue permits to authorize “incidental take” of listed species under limited circumstances. Incidental take is defined under the Act as take of a listed species that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity under limited circumstances. Regulations governing permits for threatened species are promulgated in 50 CFR 17.32.
The Elizabeth Cross Roads Property is located at the northwest corner of Highway 86 and County Road 17, along Running Creek, in the Town of Elizabeth, Elbert County, Colorado. The
In addition to the Proposed Action, alternatives considered included—(a) Waiting for the Elbert County Regional HCP to be approved, (b) developing the site without avoidance of Preble's habitat, (c) developing the portion of the site that will have no impacts to Preble's habitat, and (d) no action. The draft EA analyzes the onsite, offsite, and cumulative impacts of the proposed project and all associated development and construction activities and mitigation activities on the Preble's, and also on other threatened or endangered species, vegetation, wildlife, wetlands, geology/soils, land use, water resources, air and water quality, and cultural resources. All of the proposed permanent impacts are in upland areas outside of the 100-year floodplain. The Applicant, using the Service's definition of Preble's habitat, has determined that the proposed project would impact approximately 1.7 hectares (4.2 acres) of potential Preble's habitat. The mitigation will likely provide a net benefit to the Preble's and other wildlife by planting of native shrubs and protecting existing habitat along Running Creek from any future development.
Only one federally-listed species, the threatened Preble's, occurs onsite and has the potential to be adversely affected by the project. To mitigate impacts that may result from incidental take, the HCP provides mitigation for the commercial site by protecting and enhancing 2.1 hectares (5.3 acres) of the Running Creek corridor onsite and its associated riparian areas from all future development. Approximately 0.6 hectare (1.41 acres) of temporarily disturbed grassland will be enhanced prior to construction by fencing to eliminate grazing and an additional 1.6 hectares (3.9 acres) will be enhanced native shrub planting and native grass reseeding. Measures will be taken during construction to minimize impact to the habitat, including the use of silt fencing to reduce the amount of sediment from construction activities that reaches the creek. All of the proposed mitigation area is within the boundaries of the Elizabeth Cross Roads property, all of which is included in the drainage basin of Running Creek.
This notice is provided pursuant to section 10(c) of the Act. We will evaluate the permit application, the EA/HCP, and comments submitted therein to determine whether the application meets the requirements of section 10(a) of the Act. If it is determined that those requirements are met, a permit will be issued for the incidental take of the Preble's in conjunction with the construction of Elizabeth Cross Roads Business Park. The final permit decision will be made no sooner than 60 days after the date of this notice.
Minerals Management Service (MMS), Interior.
Request for information and Notice of Intent (NOI) to prepare an Environmental Assessment.
The Secretary's approved 5-Year OCS Oil and Gas Leasing Program for 2002-2007 provides for 3 sales: Sales 186, 195, and 202 to be held in the Beaufort Sea program area. The pre-sale process incorporated planning and analysis for all three sales. From the initial step in the process (the call for information and nominations (call)) through the final Environmental Impact Statement (EIS)/Consistency Determination (CD) step, the process covered the multiple sale proposals. However, there will be complete National Environmental Policy Act (NEPA), OCS Lands Act, and Coastal Zone Management Act coverage for each sale, and each sale will be preceded by a proposed and final notice of sale. The environmental analysis and the CD for Sale 195 will focus primarily on new issues and/or changes in the State's federally-approved coastal management plan.
The call and NOI to prepare an EIS for Sales 186, 195, and 202 was published in the
Comments on the Request for Information and on the NOI must be received no later than 45 days following publication of this document in the
Please call Tom Warren at (907) 271-6691 in MMS's Alaska OCS Region regarding questions on the request for information/NOI to prepare an Environmental Assessment.
The environmental analysis and the CD for Sale 195 will focus primarily on new issues that may have arisen since the completion of the EIS for Sales 186, 195, and 202 (February 2003) and on any changes that may have occurred in the State's coastal management plan. The process will lead to identification of the area to be included in the proposed notice of sale. Each of these steps, including the proposed notice of sale, provides for a public comment period. At the culmination of each step and after analysis of any public comments, the MMS will decide whether to proceed to the next step. This process will:
• Focus on the environmental analysis by revising types and levels of impacts that changed since the analysis was done for Sale 186;
• Result in any new issues being more easily highlighted by the public;
• Eliminate issuance for public review of repetitive, voluminous EISs for each sale; and
• Result in a more efficient and responsive application of the NEPA.
The MMS will analyze all comments received in response to this request for information and re-examine information previously submitted in response to the call and the draft and final EISs for Sales 186, 195, and 202. The MMS will then identify the area to be analyzed in the NEPA document.
This request for information does not indicate a decision to lease in the area described below. Final delineation of the areas for possible leasing will be made after completion of the pre-sale steps described above and in compliance with the final 5-year program and applicable laws, including
This request for information is published pursuant to the OCS Lands Act as amended (43 U.S.C. 1331-1356 (1994)) (OCS Lands Act), and the regulations issued thereunder (30 CFR part 256); and in accordance with the OCS Oil and Gas Leasing Program 2002 to 2007.
The purpose of the request for information is to gather information for Oil and Gas Lease Sale 195 in the Beaufort Sea, scheduled for March 2005. Information on oil and gas leasing, exploration, development, and production within the Beaufort Sea are sought from all interested parties. This early planning and consultation step is important for ensuring that all interests and concerns are communicated to the Department of the Interior for decisions in the leasing process pursuant to the OCS Lands Act and regulations at 30 CFR part 256.
The call published in the
The area located offshore the State of Alaska in the Beaufort Sea Planning Area is the subject of this request for information. It extends offshore from about 3 nautical miles to approximately 60 nautical miles, in water depths from approximately 25 feet to 200 feet. A small portion of the outer limits of the sale area north of Harrison Bay drops to approximately 3,000 feet. This area consists of approximately 1,898 whole and partial blocks (about 9.9 million acres). A page-size map of the area accompanies this notice. A large scale request for information map showing the boundaries of the area on a block-by-block basis is available without charge from the Records Manager at the address given below, or by telephone request at (907) 271-6621. Copies of Official Protraction Diagrams (OPDs) are also available for $2 each.
The request for information map delineates the area that is the subject of this request. Respondents are requested to indicate interest in and comment on any or all of the Federal acreage within the boundaries of the request for information area that they wish to have included in Beaufort Sea Sale 195.
If you wish to comment, you may submit your comments by any one of the following methods:
• You may mail comments to the Alaska OCS Region, Minerals Management Service, 949 East 36th Avenue, Room 308, Anchorage, Alaska 99508-4302.
• You may also comment via e-mail to
• Finally, you may hand-deliver comments to the Alaska OCS Region, Minerals Management Service, 949 East 36th Avenue, Room 308, Anchorage, Alaska 99508-4302.
Our practice is to make comments, including names and addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their address from the record, which we will honor to the extent allowable by law. There also may be additional circumstances in which we would withhold a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
The MMS requests industry to submit any new information, including nomination of blocks that are of significant interest for exploration, development, and production. Information and nominations submitted in response to the multiple-sale call for Sales 186, 195, and 202, published on September 19, 2001 (66 FT 48268), will also be considered as information and nominations for the Sale 195 area identification process.
Nominations must be depicted on the request for information map by outlining the area(s) of interest along block lines. Nominators are asked to submit a list of whole and partial blocks nominated (by OPD and block number) to facilitate correct interpretation of their nominations on the request for information map. Although the identities of those submitting nominations become a matter of public record, the individual nominations are proprietary information.
Nominators also are requested to rank blocks nominated according to priority of interest (
Comments also are sought on potential conflicts with approved local coastal management plans that may result from the sale and future OCS oil and gas activities. These comments should identify specific coastal management plan policies of concern, the nature of the conflicts foreseen, and steps that MMS could take to avoid or mitigate the potential conflicts. Comments may be in terms of broad areas or restricted to particular blocks of concern. Commenters are requested to list block numbers or outline the subject area on the large-scale Request for Information map.
Information submitted in response to this request for information will be used for several purposes. Responses will be used to:
• Help to further identify areas of potential oil and gas development;
• Identify environmental effects and potential use conflicts not previously addressed in the final EIS and CD for Sales 186, 195, and 202 (OCS EIS/EA, MMS 2003-0010);
• Develop any additional lease terms and conditions/mitigating measures that may be necessary; and
• Identify any potential conflicts between oil and gas activities and the Alaska coastal management plan not addressed in the CD for Sale 186.
The MMS has acquired a substantial amount of information, including that gained through the use of traditional knowledge, on the issues and concerns related to oil and gas leasing in the Beaufort Sea.
An extensive environmental, social, and economic studies program has been underway in this area since 1975. The emphasis has been on geologic mapping, environmental characterization of biologically sensitive habitats, endangered whales and marine mammals, physical oceanography, ocean-circulation modeling, and ecological and socio-cultural effects of oil and gas activities.
Information on the Studies program, completed studies, and a program status report for continuing studies in this area may be obtained from the Chief, Environmental Studies Section, Alaska OCS Region, by telephone request at (907) 271-6577, or by written request at the address stated under Description of Area. A request may also be made via the Alaska OCS Region Web site at
The following is a list of tentative milestone dates applicable to Beaufort Sea Sale 195 covered by this call:
The NOI is published pursuant to the regulations (40 CFR 1501.7) implementing the provisions of the NEPA of 1969 as amended (42 U.S.C. 4321
Pursuant to the regulations (40 CFR 1501.7) implementing the procedural provisions of the NEPA of 1969 (42 U.S.C. 4321
Federal, State, tribal, and local governments and other interested parties are requested to send their written comments on new information and issues that should be addressed in the environmental assessment to the Regional Supervisor, Leasing and Environment, Alaska OCS Region, at the address stated under Request for Information, Item 4. Comments should be enclosed in an envelope labeled “Comments on the Notice of Intent to Prepare an Environmental Assessment for Beaufort Sea Sale 195.” Comments are due no later than 45 days from publication of this notice.
National Park Service, Department of Interior.
Notice of intended submission to the Office of Management and Budget (OMB) and request for comments.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507
To assure that the NPS considers your comments on this notice; NPS must receive the comments on or before February 17, 2004.
Lieutenant Charles A. Orton, Assistant Commander Human Resources Office, United States Park Police, 1100 Ohio Drive, SW., Washington, DC 20024, via fax at 202-619-7479, or via e-mail at
Lieutenant Charles A. Orton, Assistant Commander Human Resources Office, United States Park Police, 1100 Ohio Drive, SW., Washington, DC 20024, via fax at 202-619-7479, or via e-mail at
NPS is soliciting comments regarding:
(1) Whether the collection of information is necessary for the proper performance of the functions of NPS, including whether the information will have practical utility;
(2) The accuracy of the burden estimate including the validity of the method and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected;
(4) Ways to minimize the burden of collecting the information, including through the use of appropriate automated, electronic, mechanical, or other forms of information technology; or,
(5) Any other aspect of this collection of information.
NPS will summarize and include in the request for OMB approval all responses to this notice. All comments will also become a matter of public record. You can obtain copies of the information collection from Lieutenant Charles A. Orton, Assistant Commander Human Resources Office, United States Park Police, 1100 Ohio Drive, SW., Washington, DC 20024.
The National Park Service (NPS) announces the availability of the Record of Decision (ROD) for the Vessel Quotas and Operating Requirements Environmental Impact Statement (EIS), Glacier Bay National Park and Preserve, Alaska.
The record of decision documents the NPS decision to modify quotas and operating requirements for four types of motorized watercraft—cruise ships, tour, charter, and private vessels—in Glacier Bay National Park and Preserve. The decision addresses the continuing demand for motorized watercraft access into Glacier Bay in a manner that protects park resources and values while also providing a range of opportunities for visitors consistent with park purposes and values. It was based on consideration of the park's purposes and mission, resources and values, NPS policies, comments received throughout the EIS process, and information and analysis in the EIS.
The ROD briefly discusses the background for the planning effort, describes the six alternatives considered during the EIS process, states the decision and discusses the basis for it, specifies and describes the environmentally preferable alternative, identifies measures to minimize potential environmental harm, identifies ongoing and future studies and monitoring, and summarizes the results of public involvement during the planning process.
The NPS has selected alternative 6, as described in the FEIS, with the following modifications:
• The July 1 through August 21 timeframe during which a 0.25-nautical-mile vessel approach distance to a seal hauled out on ice in Johns Hopkins Inlet waters will be retained as in current regulations and will not be extended to year-round.
• A 13-knot speed limit for vessels greater than or equal to 262 feet (80 meters) will be in effect in Glacier Bay as needed, rather than a year-round basis.
• Existing conditions do not support immediate implementation of motor vessel limits in Dundas Bay. Studies and monitoring are insufficient to support the need for limits at this time. The Park Service will impose limits when a clearer need is established. The Park Service will undertake study and monitoring of use and resource conditions in Dundas Bay.
Copies of the ROD are available on request from: Nancy Swanton, EIS Project Manager, National Park Service, Glacier Bay National Park and Preserve, c/o 240 West 5th Avenue, Anchorage, Alaska 99501. Telephone: (907) 644-3696.
Nancy Swanton, EIS Project Manager, National Park Service, Glacier Bay National Park and Preserve, c/o 240 West 5th Avenue, Anchorage, Alaska 99501. Telephone: (907) 644-3696.
The NPS prepared an EIS, as required, under the National Environmental Policy Act (NEPA) of 1969 and Council of Environmental Quality regulations (40 Code of Federal Regulations [CFR] 1500).
A Notice of Intent to prepare an EIS, published in the
The current daily vessel quotas in Glacier Bay will not change. They will continue as follows: two cruise ships, three tour vessels, six charter vessels, and 25 private vessels. Daily quotas for cruise ships and tour vessels will continue to apply year-round. Daily quotas for charter and private vessels will continue to apply from June 1 through August 31.
Seasonal entry quotas will be eliminated. Seasonal-use day quotas will continue to apply. For cruise ships, the seasonal-use day quota will be 139 from June 1 through August 31, with potential for increases to a maximum of 184. In May and September, the seasonal-use day quota for cruise ships will be 92, with potential for increases up to 122 (
The NPS is revising operating requirements, as described below. These revisions are intended to protect park resources and values, improve visitor experience, and simplify regulations.
The exemption for private vessels based in Bartlett Cove to enter and exit Glacier Bay (these are not currently counted as daily entries) without a permit will be eliminated entrance to Glacier Bay.
Up to 10 permits may be issued to private vessels on “short-notice” daily. This number may be adjusted annually through use of the park compendium. These permits will be issued, on a space available basis, to any individual who requests a permit within 48 hours of entering Glacier Bay.
• The superintendent may impose a 13-knot speed limit, as necessary, for motor vessels greater than or equal to 262 feet (80 meters) in length throughout Glacier Bay because of the presence of humpback whales. Park Service staff will monitor whale abundance, movements, and distribution, and provide this information to the park superintendent, who will determine whether to set a 13-knot speed limit for vessels of this length or greater.
• From May 15 through September 30, in lower Bay whale waters, operating a motor vessel at more than 20 knots through the water will be prohibited.
• At any time of year in waters of Glacier Bay or Dundas Bay, the following will be prohibited: operating a motor vessel at more than 13 knots through the water when and where the superintendent has designated a maximum speed of 13 knots because of the presence of whales.
Implementation of the decision will require promulgation of regulations, revising 36 CFR 13.65. Draft regulations are planned to be published for public comment in 2004, and final regulations are anticipated by early 2005.
National Park Service, Department of the Interior.
Notice of Availability of the draft environmental impact statement for the Star-Spangled Banner National Historic Trail Study.
Pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4332(c), the National Park Service announces the availability of the draft Environmental Impact Statement for the Star-Spangled Banner National Historic Trail.
The National Park Service will accept comments from the public on the Draft Environmental Impact Statement for 60 days after publication of this notice. No public meetings are scheduled at this time.
Information will be available for public review and comment from the Northeast Region, National Park Service, 200 Chestnut Street, Philadelphia, PA 19106 or at
William Sharp, Project Manager, Northeast Region, 215-597-1655 or
If you wish to comment, you may submit your comments by any one of several methods. You may mail or e-mail comments to William Sharp, Northeast Region, 200 Chestnut Street, Philadelphia, PA 19106, or
Nominations for the following properties being considered for listing in the National Register were received by the National Park Service before December 6, 2003. Pursuant to section 60.13 of 36 CFR part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th floor, Washington DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by December 31, 2003.
A request for a MOVE has been made for the following resource:
A request for REMOVAL has been made for the following resources:
Nominations for the following properties being considered for listing in the National Register were received by the National Park Service before November 29, 2003. Pursuant to section 60.13 of 36 CFR part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service,1201 Eye St. NW., 8th floor, Washington, DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by December 31, 2003.
Nominations for the following properties being considered for listing in the National Register were received by the National Park Service before November 22, 2003. Pursuant to section 60.13 of 36 CFR part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St., NW., 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St., NW., 8th floor, Washington DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by December 31, 2003.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review portions of the presiding administrative law judge's (“ALJ's”) final initial determination (“ID”) and to affirm ALJ Order No. 32.
Clara Kuehn, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-3012. Copies of the public version of the ALJ's final 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 (
The Commission instituted this investigation on July 26, 2002, based on a complaint filed by U.S. Philips Corporation of Tarrytown, NY (“Philips” or “complainant”). 67 FR 48,948 (2002). The complaint, as supplemented, 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 recordable compact discs and rewritable compact discs by reason of infringement of certain claims of six U.S. patents: claims 1, 5, and 6 of U.S. Patent No. 4,807,209; claim 11 of U.S. Patent No. 4,962,493; claims 1, 2, and 3 of U.S. Patent No. 4,972,401; claims 1, 3, and 4 of U.S. Patent No. 5,023,856; claims 1-5, and 6 of U.S. Patent No. 4,999,825; and claims 20, 23-33, and 34 of U.S. Patent No. 5,418,764. 67 FR 48,948 (2002).
The notice of investigation named 19 respondents, including GigaStorage Corporation Taiwan of Hsinchu, Taiwan; GigaStorage Corporation USA of Livermore, California (collectively, “GigaStorage”); and Linberg Enterprise Inc. (“Linberg”) of West Orange, New Jersey. 67 FR 48,948 (2002). On August 14, 2002, the ALJ issued an ID (Order No. 2) granting a motion to intervene as respondents by Princo Corporation of Hsin-Chu, Taiwan, and Princo America Corporation of Fremont, California (collectively, “Princo”). That ID was not reviewed by the Commission. GigaStorage, Linberg, and Princo (“respondents”) are the only remaining active respondents in this investigation.
On April 7, 2003, the ALJ issued an ID (ALJ Order No. 20) granting complainant's unopposed motion for summary determination that Linberg, GigaStorage, and Princo have each sold for importation, imported, and/or sold after importation products accused of infringing one or more of the asserted patent claims. That ID was not reviewed by the Commission.
A tutorial session was held on June 3, 2003, and an evidentiary hearing was held from June 10, 2003, through June 20, 2003.
On June 30, 2003, the ALJ issued an order (ALJ Order No. 32) granting a motion
The ALJ issued his final ID on October 24, 2003. Although he found that none of the asserted claims are invalid, that the accused products infringe the asserted claims, and that the domestic industry requirement of section 337 has been satisfied, he found no violation of section 337 because he concluded that all of the asserted patents are unenforceable by reason of patent misuse.
On November 5, 2003, complainant Philips petitioned for review of the portion of the final ID that found the asserted patents unenforceable due to patent misuse, and also appealed ALJ Order No. 32. On the same day, respondents filed a paper entitled “Statement of Respondents Princo Corp., Princo America Corp., Gigastorage Corp. Taiwan, Gigastorage Corp. USA, and Linberg Enterprises, Inc. Regarding the Initial Determination,” in which respondents urged the Commission to adopt the ID in its entirety. Respondents and the IA filed responses to complainant's petition for review.
On December 8, 2003, the ALJ issued his recommended determination on remedy and bonding.
Having reviewed the record in this investigation, including the parties' written submissions, the Commission determined to affirm ALJ Order No. 32 and to review the ID's findings of fact and conclusions of law concerning patent misuse. The Commission has
In connection with the final disposition of this investigation, the Commission may issue (1) An order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) cease and desist orders that could result in respondents being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or are likely to do so. For background information, see the Commission Opinion,
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist orders would have on (1) The public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the President has 60 days to approve or disapprove the Commission's action. During this period, the subject articles would be entitled to enter the United States under a bond, in an amount to be determined by the Commission and prescribed by the Secretary of the Treasury. The Commission is therefore interested in receiving submissions concerning the amount of the bond that should be imposed.
Persons filing written submissions must file with the Office of the Secretary the original and 14 true copies thereof on or before the deadlines stated above. Any person desiring to submit a document (or portion thereof) to the Commission in confidence must request confidential treatment unless the information has already been granted such treatment during the proceedings. All such requests should be directed to the Secretary of the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.42-.45 of the Commission's Rules of Practice and Procedure (19 CFR 210.42-.45).
By order of the Commission.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) (44 U.S.C. 3506(c)(2)(A)). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment Standards Administration is soliciting comments concerning the proposed collection: Medical Travel Refund Request (OWCP-957). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this notice.
Written comments must be submitted to the office listed in the addresses section below on or before February 17, 2004.
Ms. Hazel M. Bell, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-3201, Washington, DC 20210, telephone (202) 693-0418, fax (202) 693-1451, Email
The Office of Workers' Compensation Programs (OWCP) administers the Federal Employees' Compensation Act (FECA), 5 U.S.C. 8101
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Department of Labor seeks approval for the extension of this information collection in order to carry out its responsibility to determine if requests for reimbursement for out-of-pocket expenses incurred when traveling to medical providers for covered medical testing or treatment should be paid.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) (44 U.S.C. 3506(c)(2)(A)). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment Standards Administration is soliciting comments concerning the proposed collection: Employment Information Forms (WH-3 and WH-3 Spanish). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this notice.
Written comments must be submitted to the office listed in the addresses section below on or before February 17, 2004.
Ms. Hazel M. Bell, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-3201, Washington, DC 20210, telephone (202) 693-0418, fax (202) 693-1451, Email
Section 11(d) of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Department of Labor seeks approval for the extension of this information collection in order to carry out its responsibility to meet the statutory requirements to investigate alleged violations of the various labor standards laws enforced by the Wage and Hour Division.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Copyright Office, Library of Congress.
New procedure for courier deliveries.
The Copyright Office is announcing the implementation of new procedures for deliveries made by non-government, in-person, commercial couriers or messengers. These procedures do not apply to deliveries made by U.S. government representatives or those made by large commercial carriers such as Federal Express or United Parcel Service.
December 29, 2003.
Melissa Dadant, Chief, Receiving and Processing Division. Telephone: (202) 707-7700. Telefax: (202) 707-1899. Tanya M. Sandros, Senior Attorney. Telephone: (202) 707-8380. Telefax: (202) 707-8366.
Beginning on December 29, 2003, the Library of Congress will no longer accept on site deliveries from non-governmental, in-person, commercial couriers or messengers. Instead, couriers must deliver materials for staff at the Library of Congress, including deliveries to Copyright Office employees, directly to the Congressional Courier Acceptance Site (“CCAS”), located on 2nd and D Streets, NE. The CCAS will accept items from couriers with proper identification,
A courier may make a delivery of up to ten items to the CCAS at any one time. When a courier makes a delivery to the acceptance site, each item will be logged-in, noting date and time, x-rayed and screened for hazardous materials and substances. Packages no larger than 4″ × 14″ × 18″ will be accepted at the CCAS for processing on site. Larger packages delivered to the CCAS will be redirected to the Library of Congress' off-site mail processing center for inspection. Items will not be presorted and redirected based on their weight.
Expected deliveries from a source known to the recipient that arrive at the CCAS before 10 a.m. will be inspected and delivered to the appropriate office in the Library of Congress by the end of the day. All other deliveries will be delivered generally during the morning of the next business day. Expected deliveries are those which have been requested by a staff member of the Library from a sender known to the Library or a staff member, and which are delivered by an employee of a known organization,
These procedures do not apply to normal mail deliveries or deliveries from large commercial carriers such as Federal Express or United Parcel Service (“UPS”). Deliveries from these carriers will continue to be processed at the off-site mail facility.
National Aeronautics and Space Administration (NASA).
Policy guidance document.
NASA adopts policy guidance to federal financial assistance recipients regarding Title VI prohibition against national origin discrimination affecting Limited English Proficient (LEP) persons. The NASA recipient LEP policy guidance is issued pursuant to Executive Order 13166 and supplants existing policy guidance on the same subject originally published at 66 FR 15141 (March 15, 2001).
Effective immediately.
Mr. Miguel A. Torres, 202-358-0937, or TDD: 202-358-3748. Arrangements to receive the policy in an alternative format may be made by contacting Mr. Miguel A. Torres.
The purpose of this policy guidance is to further clarify the responsibilities of institutions and/or entities that receive financial assistance from NASA, and assist them in fulfilling their responsibilities to LEP persons pursuant to Title VI of the Civil Rights Act of 1964. The policy guidance emphasizes that in order to avoid discrimination against LEP persons on grounds of national origin, recipients of NASA financial assistance must take adequate steps to ensure that people who are not proficient in English can effectively participate in and benefit from the recipient's programs and activities. Therefore, LEP persons should expect to receive the language assistance necessary to afford them meaningful access to the recipients' programs and activities, free of charge.
This document was originally published as policy guidance for public comment on March 15, 2001.
On October 26, 2001, and January 11, 2002, the Assistant Attorney General for
In furtherance of those memoranda, NASA republished revised policy guidance for additional public comment on August 15, 2003 (68 FR 48947), for the purpose of obtaining additional public comment. Because the guidance must adhere to the federal-wide compliance standards and framework detailed in the model DOJ LEP Guidance, NASA specifically solicited comments on the nature, scope and appropriateness of the NASA-specific examples set out in the revised guidance explaining and/or highlighting how those consistent federal-wide compliance standards are applicable to recipients of federal financial assistance through NASA. No public comments were received.
It has been determined that this guidance, which supplants existing guidance on the same subject previously published at 66 FR 15141 (March 15, 2001), does not constitute a regulation subject to the rulemaking requirements of the Administrative Procedure Act, 5 U.S.C. 553. It also has been determined that this guidance is not subject to Executive Order 12866.
Most individuals living in the United States read, write, speak and understand English. There are many individuals, however, for whom English is not their primary language. For instance, based on the 2000 census, over 26 million individuals speak Spanish and almost 7 million individuals speak an Asian or Pacific Island language at home. If these individuals have a limited ability to read, write, speak, or understand English, they are limited English proficient, or LEP. While detailed data from the 2000 census has not yet been released, 26% of all Spanish-speakers, 29.9% of all Chinese-speakers, and 28.2% of all Vietnamese-speakers reported that they spoke English not well or not at all in response to the 1990 census.
Language for LEP individuals can be a barrier to accessing important benefits or services, understanding and exercising important rights, complying with applicable responsibilities, or understanding other information provided by federally funded programs and activities. The Federal Government funds an array of services that can be made accessible to otherwise eligible LEP persons. The Federal Government is committed to improving the accessibility of these programs and activities to eligible LEP persons, a goal that reinforces its equally important commitment to promoting programs and activities designed to help individuals learn English. Recipients should not overlook the long-term positive impacts of incorporating or offering English as a Second Language (ESL) programs in parallel with language assistance services. ESL courses can serve as an important adjunct to a proper Language Assistance Plan (LAP). However, the fact that ESL classes are made available does not obviate the statutory and regulatory requirement to provide meaningful access for those who are not yet English proficient. Recipients of federal financial assistance have an obligation to reduce language barriers that can preclude meaningful access by LEP persons to important government services.
In certain circumstances, failure to ensure that LEP persons can effectively participate in or benefit from federally assisted programs and activities may violate the prohibition under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d and Title VI regulations against national origin discrimination. The purpose of this policy guidance is to assist recipients in fulfilling their responsibilities to provide meaningful access to LEP persons under existing law. This policy guidance clarifies existing legal requirements for LEP persons by providing a description of the factors recipients should consider in fulfilling their responsibilities to LEP persons.
There are many productive steps that NASA can take to help recipients reduce the costs of language services without sacrificing meaningful access for LEP persons. Without these steps, certain smaller grantees may well choose not to participate in federally assisted programs, threatening the critical functions that the programs strive to provide. To that end, NASA plans to continue to provide assistance and guidance in this important area. In addition, NASA plans to work with its recipients, and LEP persons to identify and share model plans, examples of best practices, and cost-saving approaches. Moreover, NASA intends to explore how language assistance measures, resources and cost-containment approaches developed with respect to its own federally conducted programs and activities can be effectively shared or otherwise made available to recipients, particularly small businesses, and small non-profits. An interagency working group on LEP has developed a Web site,
Many commentators, responding to the proposed DOJ LEP Policy Guidance, noted that some have interpreted the case of
Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, provides that no person shall on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. Section 602 authorizes and directs federal agencies that are empowered to extend federal financial assistance to any program or activity to effectuate the provisions of [Section 601] by issuing rules, regulations, or orders of general applicability. 42 U.S.C. 2000d-1.
NASA regulations promulgated pursuant to Section 602 forbid recipients from utilizing criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as to individuals of a particular race, color, or national origin. 14 CFR 1250.103-2.
The Supreme Court, in
On August 11, 2000, Executive Order 13166 was issued. Improving Access to Services for Persons with Limited English Proficiency, 65 FR 50121 (August 16, 2000). Under that Order, every federal agency that provides financial assistance to non-federal entities must publish guidance on how their recipients can provide meaningful access to LEP persons and thus comply with Title VI regulations forbidding funding recipients from restricting an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program. Title VI regulations also prohibit utilizing criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.
On that same day, DOJ issued a general guidance document addressed to Executive Agency Civil Rights Officers setting forth general principles for agencies to apply in developing guidance documents for recipients pursuant to the Executive Order. Enforcement of Title VI of the Civil Rights Act of 1964 National Origin Discrimination Against Persons With Limited English Proficiency, 65 FR 50123 (August 16, 2000) (DOJ LEP Guidance). The DOJ role under Executive Order 13166 (the Executive Order) is unique. The Executive Order charges DOJ with responsibility for providing LEP Guidance to other Federal agencies and for ensuring consistency among each agency-specific guidance. Consistency among Departments of the Federal Government is particularly important. Inconsistency or contradictory guidance could confuse recipients of federal funds and needlessly increase costs without rendering the meaningful access for LEP persons that this guidance is designed to address.
Subsequently, Federal agencies raised questions regarding the requirements of the Executive Order, especially in light of the Supreme Court's decision in
Pursuant to Executive Order 13166, DOJ developed its own guidance document for recipients and initially issued it on January 16, 2001. Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 66 FR 3834 (January 16, 2001) (LEP Guidance for DOJ Recipients). NASA published in the
This guidance document is thus published pursuant to Executive Order 13166 and supplants the March 15, 2001, publication.
NASA regulations, 14 CFR Part 1250, require all recipients of federal financial assistance from NASA to provide meaningful access to LEP persons.
• State or local agencies
• Non-profit institutions or organizations
• Educational Institutions
• Any public or private individual to whom federal assistance is extended, directly or through another recipient, including any successor, assignee, or transferee thereof.
Sub-recipients likewise are covered when federal funds are passed through from one recipient to a sub-recipient.
Coverage extends to a recipient's entire program or activity,
Example: NASA provides assistance to a state department of education for curriculum enhancement in science and mathematics in its public schools. All of the operations of the entire state department of education—not just the schools—are covered.
Finally, some recipients operate in jurisdictions in which English has been declared the official language. Nonetheless, these recipients continue to be subject to federal non-discrimination requirements, including those applicable to the provision of federally assisted services to persons with limited English proficiency.
Individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English can be limited English proficient, or LEP, entitled to language assistance with respect to a particular type of service, benefit, or encounter.
Examples of populations likely to include LEP persons who are encountered and/or served by NASA recipients and should be considered when planning language services include, but are not limited to:
• Students enrolled in NASA-funded science, mathematics, and technology enrichment activities.
• Parents or family members of the above.
• Individuals participating in NASA program orientations and visiting exhibits at NASA Visitor centers where the programs and activities are funded and conducted by a NASA financial assistance recipient.
Recipients are required to take reasonable steps to ensure meaningful access to their programs and activities by LEP persons. While designed to be a flexible and fact-dependent standard, the starting point is an individualized assessment that balances the following four factors: (1) The number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee; (2) the frequency with which LEP individuals come in contact with the program; (3) the nature and importance of the program, activity, or service provided by the program to people's lives; and (4) the resources available to the grantee/recipient and costs. As indicated above, the intent of this guidance is to suggest a balance that ensures meaningful access by LEP persons to critical services while not imposing undue burdens on small business, small local governments, or small nonprofits.
After applying the above four-factor analysis, a recipient may conclude that different language assistance measures are sufficient for the different types of programs or activities in which it engages. For instance, some of a recipient's activities will be more important than others and/or have greater impact on or contact with LEP persons, and thus may require more in the way of language assistance. The flexibility that recipients have in addressing the needs of the LEP populations they serve does not diminish, and should not be used to minimize, the obligation that those needs be addressed. NASA recipients should apply the following four factors to the various kinds of contacts that they have with the public to assess language needs and decide what reasonable steps they should take to ensure meaningful access for LEP persons.
One factor in determining what language services recipients should provide is the number or proportion of LEP persons from a particular language group served or encountered in the eligible service population. The greater the number or proportion of these LEP persons, the more likely language services are needed. Ordinarily, persons eligible to be served, or likely to be directly affected, by a recipient's program or activity are those who are served or encountered in the eligible service population. This population will be program-specific, and includes persons who are in the geographic area that has been approved by a federal grant agency as the recipient's service area. However, where, for instance, a school district receiving NASA financial assistance serves a large LEP population, the appropriate service area is most likely the school district, and not the entire state. Where no service area has previously been approved, the relevant service area may be that which is approved by state or local authorities or designated by the recipient, provided that these designations do not themselves discriminatorily exclude certain populations. When considering the number or proportion of LEP individuals in a service area, recipients should consider LEP parent(s) when their English-proficient or LEP minor children and dependents are potential or actual participants or beneficiaries of NASA-funded programs and activities.
Recipients should first examine their prior experiences with LEP encounters and determine the breadth and scope of language services that were needed. In conducting this analysis, it is important to include language minority populations that are eligible for their programs or activities but may be underserved because of existing language barriers. Other data should be consulted to refine or validate a recipient's prior experience, including the latest census data for the area served, data from school systems and from community organizations, and data from state and local governments.
Recipients should assess, as accurately as possible, the frequency with which they have or should have contact with an LEP individual from different language groups seeking assistance. The more frequent the contact with a particular language group, the more likely that enhanced language services in that language are needed. The steps that are reasonable for a recipient that serves an LEP person on a one-time basis will be very different than those expected from a recipient that serves LEP persons daily. It is also advisable to consider the frequency of different types of language contacts. For example, frequent contacts with Spanish-speaking people who are LEP may require certain assistance in Spanish. Less frequent contact with different language groups may suggest a different and less intensified solution. If an LEP individual accesses a program or service on a daily basis, a recipient has greater duties than if the same individual's program or activity contact is unpredictable or infrequent. But even recipients that serve LEP persons on an unpredictable or infrequent basis should use this balancing analysis to determine what to do if an LEP individual seeks services under the program in question.
The more important the activity, information, service, or program, or the greater the possible consequences of the contact to the LEP individuals, the more likely language services are needed. The obligations to communicate information on short and long-term weather patterns to rural communities via satellite pictures and computer modeling differ, for example, from those to provide curriculum enhancement in science and mathematics to middle school students. A recipient needs to determine whether denial or delay of access to services or information could have serious or even life-threatening implications for the LEP individual. Decisions by NASA recipients to make an activity compulsory, such as instruction on safety and security requirements before touring a NASA facility, can serve as strong evidence of the program's importance.
A recipient's level of resources and the costs that would be imposed on it may have an impact on the nature of the steps it should take. Smaller recipients with more limited budgets are not expected to provide the same level of language services as larger recipients with larger budgets. In addition, reasonable steps may cease to be reasonable where the costs imposed substantially exceed the benefits.
Resource and cost issues, however, can often be reduced by technological advances; the sharing of language assistance materials and services among and between recipients, advocacy groups, and Federal grant agencies; and reasonable business practices. Where appropriate, training bilingual staff to act as interpreters and translators, information sharing through industry groups, telephonic and video conferencing interpretation services, pooling resources and standardizing documents to reduce translation needs, using qualified translators and interpreters to ensure that documents need not be fixed later and that inaccurate interpretations do not cause delay or other costs, centralizing interpreter and translator services to achieve economies of scale, or the formalized use of qualified community volunteers, for example, may help reduce costs.
This four-factor analysis necessarily implicates the mix of LEP services required. Recipients have two main ways to provide language services: Oral interpretation either in person or via telephone interpretation service (hereinafter interpretation) and written translation (hereinafter translation). Oral interpretation can range from on-site interpreters for critical services provided to a high volume of LEP persons to access through commercially-available telephonic interpretation services. Written translation, likewise, can range from translation of an entire document to translation of a short description of the document. In some cases, language services should be made available on an expedited basis while in others the LEP individual may be referred to another office of the recipient for language assistance.
The correct mix should be based on what is both necessary and reasonable in light of the four-factor analysis. For instance, a visit by the NASA Administrator to a largely Hispanic neighborhood may need immediate oral interpreters available. (Of course, many community organizations may have already made such arrangements.) In contrast, there may be circumstances where the importance and nature of the activity and number or proportion and frequency of contact with LEP persons may be low and the costs and resources needed to provide language services may be high, such as in the case of a voluntary general public tour of a NASA program site in which pre-arranged language services for the particular service may not be necessary. Regardless of the type of language service provided, quality and accuracy of those services can be critical in order to avoid serious consequences to the LEP person and to the recipient. Recipients have substantial flexibility in determining the appropriate mix.
Recipients have two main ways to provide language services: oral and written language services. Quality and accuracy of the language service is critical in order to avoid serious consequences to the LEP person and to the recipient.
Interpretation is the act of listening to something in one language (source language) and orally translating it into another language (target language). Where interpretation is needed and is reasonable, recipients should consider some or all of the following options for providing competent interpreters in a timely manner:
Competence of Interpreters. When providing oral assistance, recipients should ensure competency of the language service provider, no matter which of the strategies outlined below are used. Competency requires more than self-identification as bilingual. Some bilingual staff and community volunteers, for instance, may be able to communicate effectively in a different language when communicating information directly in that language, but not be competent to interpret in and out of English. Likewise, they may not be able to do written translations.
Competency to interpret, however, does not necessarily mean formal certification as an interpreter, although certification is helpful. When using interpreters, recipients should ensure that they:
Demonstrate proficiency in and ability to communicate information accurately in both English and in the other language and identify and employ the appropriate mode of interpreting (
Have knowledge in both languages of any specialized terms or concepts peculiar to the entity's program or activity and of any particularized vocabulary and phraseology used by the LEP person,
Understand and adhere to their role as interpreters without deviating into a role as counselor, legal advisor, or other roles.
Some recipients, such as technical or scientific recipients, may have additional self-imposed requirements for interpreters. Where the technical integrity of the information depends on precise, complete, and accurate interpretation or translations, particularly in the contexts of communicating technology innovations to the public, the use of certified interpreters is strongly encouraged.
The quality and accuracy of language services is part of the appropriate mix of LEP services required. The quality and accuracy of language services during a safety and security briefing, for example, must be extraordinarily high, while the quality and accuracy of language services in responding to telephonic inquiries for general information need not meet the same exacting standards.
Finally, when interpretation is needed and is reasonable, it should be provided in a timely manner. To be meaningfully effective, language assistance should be timely. While there is no single definition for timely applicable to all types of interactions at all times by all types of recipients, one clear guide is that the language assistance should be provided at a time and place that avoids the effective denial of the service, benefit, or right at issue or the imposition of an undue burden on or delay in important rights, benefits, or services to the LEP person. For example, when the timeliness of services is important, such as with certain activities of NASA recipients which involve the provision of enrollment information to parents of potential student participants in NASA-funded enrichment activities in science, mathematics, and/or technology, a recipient would likely not be providing meaningful access if it had one bilingual member of the staff available one day a week to provide the service. Such conduct would likely result in delays for LEP persons that would be significantly greater than those for English proficient persons. Conversely, where access to or exercise of a service, benefit, or right is not effectively precluded by a reasonable delay, language assistance can likely be delayed for a reasonable period.
Recipients, however, should take special care to ensure that family, legal guardians, caretakers, and other informal interpreters are appropriate in light of the circumstances and subject matter of the program, service or activity, including protection of the recipient's own administrative or enforcement interest in accurate interpretation. In many circumstances, family members (especially children), or friends, persons are not competent to provide quality and accurate interpretations. Issues of confidentiality, privacy, or conflict of interest may also arise. LEP individuals may feel uncomfortable revealing or describing sensitive, confidential, or potentially embarrassing medical, law enforcement (
An example of such a case is when security guards respond to an illegal entry call. In such a case, use of family members or neighbors to interpret for the alleged perpetrator or witnesses may raise serious issues of competency, confidentiality, and conflict of interest and is thus inappropriate. While issues of competency, confidentiality, and conflict of interest in the use of family members (especially children), or friends, often make their use inappropriate, the use of these individuals as interpreters may be an appropriate option where proper application of the four factors would lead to a conclusion that recipient-provided services are not necessary. An example of this is a voluntary, unescorted tour of artwork in a NASA facility open to the general public. There, the importance and nature of the activity may be relatively low and unlikely to implicate issues of confidentiality, conflict of interest, or the need for accuracy. In addition, the resources needed and costs of providing language services may be high. In such a setting, an LEP person's use of family members, friends, or others may be appropriate.
If the LEP person voluntarily chooses to provide his or her own interpreter, a recipient should consider whether a record of that choice and of the recipient's offer of assistance is appropriate. Where precise, complete, and accurate interpretations or translations of information are critical, or where the competency of the LEP person's interpreter is not established, a recipient might decide to provide its own, independent interpreter, even if an LEP person wants to use his or her own interpreter as well. Extra caution should be exercised when the LEP person chooses to use a minor as the interpreter. While the LEP person's decision should be respected, there may be additional issues of competency, confidentiality, or conflict of interest when the choice involves using children as interpreters. The recipient should take care to ensure that the LEP person's choice is voluntary, that the LEP person is aware of the possible problems if the preferred interpreter is a minor child, and that the LEP person knows that a competent interpreter could be provided by the recipient at no cost.
Translation is the replacement of a written text from one language (source language) into an equivalent written text in another language (target language).
Such written materials could include, for example:
• Consent and complaint forms
• Written notices of rights, or discontinuation of programs and/or activities
• Notices advising LEP persons of free language assistance
• Security or safety brochures for visitors to NASA facilities
• Applications to participate in a recipient's program or activity or to receive recipient benefits or services.
Whether or not a document (or the information it solicits) is vital may depend upon the importance of the program, information, encounter, or service involved, and the consequence to the LEP person if the information in question is not provided accurately or in a timely manner. For instance, applications for participation in an after-school science and mathematics enrichment program could be considered vital. Where appropriate, recipients are encouraged to create a plan for consistently determining, over time and across its various activities, what documents are vital to the meaningful access of the LEP populations they serve.
Classifying a document as vital or non-vital is sometimes difficult, especially in the case of outreach materials like brochures or other information on rights and services. Awareness of rights or services is an important part of meaningful access. Lack of awareness that a particular program, right, or service exists may effectively deny LEP individuals meaningful access. Thus, where a recipient is engaged in community outreach activities in furtherance of its activities, it should regularly assess the needs of the populations frequently encountered or affected by the program or activity to determine whether certain critical outreach materials should be translated. Community organizations may be helpful in determining what outreach materials may be most helpful to translate. In addition, the recipient should consider whether translations of outreach material may be made more effective when done in tandem with
Sometimes a document includes both vital and non-vital information. This may be the case when the document is very large. It may also be the case when the title and a phone number for obtaining more information on the contents of the document in frequently-encountered languages other than English is critical, but the document is sent out to the general public and cannot reasonably be translated into many languages. Thus, vital information may include, for instance, the provision of information in appropriate languages other than English regarding where a LEP person might obtain an interpretation or translation of the document.
The failure to provide written translations under the circumstances outlined in paragraphs (a) and (b) does not mean there is non-compliance. Rather, they provide a common starting point for recipients to consider whether and at what point the importance of the service, benefit, or activity involved; the nature of the information sought; and the number or proportion of LEP persons served call for written translations of commonly-used forms into frequently-encountered languages other than English. Thus, these paragraphs merely provide a guide for recipients that would like greater certainty of compliance than can be provided by a fact-intensive, four-factor analysis.
Even if the safe harbors are not used, if written translation of a certain document(s) would be so burdensome as to defeat the legitimate objectives of its program, the translation of the written materials is not necessary. Other ways of providing meaningful access, such as effective oral interpretation of certain vital documents, might be acceptable under such circumstances.
Safe Harbor. The following actions will be considered strong evidence of compliance with the recipient's written-translation obligations:
(a) The NASA recipient provides written translations of vital documents for each eligible LEP language group that constitutes five percent or 1,000, whichever is less, of the population of persons eligible to be served or likely to be affected or encountered. Translation of other documents, if needed, can be provided orally; or
(b) If there are fewer than 50 persons in a language group that reaches the five percent trigger in (a), the recipient does not translate vital written materials but provides written notice in the primary language of the LEP language group of the right to receive competent oral interpretation of those written materials, free of cost.
These safe harbor provisions apply to the translation of written documents only. They do not affect the requirement to provide meaningful access to LEP individuals through competent oral interpreters where oral language services are needed and are reasonable. For example, NASA-funded educational enrichment programs should, where appropriate, ensure that NASA safety and security rules have been explained to LEP participants, at orientation, for instance, prior to taking a tour of any NASA facility.
Particularly where scientific and other technical documents are being translated, competence can often be achieved by use of certified translators. Certification or accreditation may not always be possible or necessary.
Translators should understand the expected reading level of the audience and, where appropriate, have fundamental knowledge about the target language group's vocabulary and phraseology. Sometimes direct translation of materials results in a translation that is written at a much more difficult level than the English language version or has no relevant equivalent meaning.
While quality and accuracy of translation services is critical, the quality and accuracy of translation services is nonetheless part of the appropriate mix of LEP services required. For instance, documents that are simple for LEP persons who rely on them may use translators that are less skilled than important documents upon which reliance has important consequences (including,
After completing the four-factor analysis and deciding what language assistance services are appropriate, a recipient should develop an implementation plan to address the identified needs of the LEP populations they serve. Recipients have considerable flexibility in developing this plan. The development and maintenance of a periodically-updated written LAP for LEP persons for use by recipient employees serving the public will likely be the most appropriate and cost-effective means of documenting compliance and providing a framework for the provision of timely and reasonable language assistance. Moreover, such written plans would likely provide additional benefits to a recipient's managers in the areas of training, administration, planning, and budgeting. These benefits should lead most recipients to document in a written LAP, their language assistance services, and how staff and LEP persons can access those services. Despite these benefits, certain NASA recipients, such as recipients serving very few LEP persons and recipients with very limited resources, may choose not to develop a written LAP. However, the absence of a written LAP does not obviate the underlying obligation to ensure meaningful access by LEP persons to a recipient's program or activities. Accordingly, in the event that a recipient elects not to develop a written plan, it should consider alternative ways to articulate in some other reasonable manner a plan for providing meaningful access. Entities having significant contact with LEP persons, such as schools, religious organizations, community groups, and groups working with new immigrants can be very helpful in providing important input into this planning process from the beginning.
The following five steps may be helpful in designing a LAP and are typically part of effective implementation plans.
The first two factors in the four-factor analysis require an assessment of the number or proportion of LEP individuals eligible to be served or encountered and the frequency of encounters. This requires recipients to identify LEP persons with whom it has contact.
One way to determine the language of communication is to use language identification cards (or “I speak cards”), which invite LEP persons to identify their language needs to staff. Such cards, for instance, might say “I speak Spanish” in both Spanish and English, “I speak Vietnamese” in both English and Vietnamese, etc. To reduce costs of compliance, the federal government has made a set of these cards available on the Internet. The Census Bureau “I speak card” can be found and downloaded at
An effective LAP would likely include information about the ways in which language assistance will be provided. For instance, recipients may want to include information on at least the following:
• Types of language services available.
• How staff can obtain those services.
• How to respond to LEP callers.
• How to respond to written communications from LEP persons.
• How to respond to LEP individuals who have in-person contact with recipient staff.
• How to ensure competency of interpreters and translation services.
Staff should know their obligations to provide meaningful access to information and services for LEP persons. An effective LAP plan would likely include training to ensure that:
• Staff know about LEP policies and procedures.
• Staff having contact with the public (or those in a recipient's custody) are trained to work effectively with in-person and telephone interpreters.
Recipients may want to include this training as part of the orientation for new employees. It is important to ensure that all employees in public contact positions are properly trained. Recipients have flexibility in deciding the manner in which the training is provided. The more frequent the contact with LEP persons, the greater the need will be for in-depth training. Staff with little or no contact with LEP persons may only have to be aware of a LAP. However, management staff, even if they do not interact regularly with LEP persons, should be fully aware of and understand the plan so they can reinforce its importance and ensure its implementation by staff.
Once a recipient has decided, based on the four factors, that it will provide language services, it is important for the recipient to let LEP persons know that those services are available and that they are free of charge. Recipients should provide this notice in a language LEP persons will understand. Examples of notification that recipients should consider include:
• Posting signs in intake areas and other entry points. When language assistance is needed to ensure meaningful access to information and services, it is important to provide notice in appropriate languages in intake areas or initial points of contact so that LEP persons can learn how to access those language services. This is particularly true in areas with high volumes of LEP persons seeking access to certain NASA programs, activities and or facilities run by NASA recipients. For instance, signs in entry areas could state that free language assistance is available. The signs should be translated into the most common languages encountered. They should explain how to get the language help. In addition, posting notices in commonly encountered languages notifying LEP persons of language assistance will encourage them to self-identify.
• Stating in outreach documents that language services are available from the NASA recipient. Announcements could
• Working with community-based organizations and other stakeholders to inform LEP individuals of the recipients' services, including the availability of language assistance services.
• Using a telephone voice mail menu. The menu could be in the most common languages encountered. It should provide information about available language assistance services and how to get them.
• Including notices in local newspapers in languages other than English.
• Providing notices on non-English-language radio and television stations about the available language assistance services and how to get them.
• Presentations and/or notices at schools and religious organizations.
Recipients should, where appropriate, have a process for determining, on an ongoing basis, whether new documents, programs, services, and activities need to be made accessible for LEP individuals, and they may want to provide notice of any changes in services to the LEP public and to employees. In addition, recipients should consider whether changes in demographics, types of services, or other needs require annual reevaluation of their LAP. Less frequent reevaluation may be more appropriate where demographics, services, and needs are more static. One good way to evaluate the LAP is to seek feedback from the community.
In their reviews, recipients may want to consider assessing changes in:
• Current LEP populations in service area or population affected or encountered.
• Frequency of encounters with LEP language groups.
• Nature and importance of activities to LEP persons.
• Availability of resources, including technological advances and sources of additional resources, and the costs imposed.
• Whether existing assistance is meeting the needs of LEP persons.
• Whether staff knows and understands the LAP and how to implement it.
• Whether identified sources for assistance are still available and viable.
In addition to these five elements, effective plans set clear goals, management accountability, and opportunities for community input and planning throughout the process.
The goal for Title VI and Title VI regulatory enforcement is to achieve voluntary compliance. The requirement to provide meaningful access to LEP persons is enforced and implemented by NASA through the procedures identified in the Title VI regulations. These procedures include complaint investigations, compliance reviews, efforts to secure voluntary compliance, and technical assistance.
The Title VI regulations provide that NASA will investigate whenever it receives a complaint, report, or other information that alleges or indicates possible noncompliance with Title VI or NASA regulations.
While all recipients must work toward building systems that will ensure access for LEP individuals, NASA acknowledges that the implementation of a comprehensive system to serve LEP individuals is a process and that a system will evolve over time as it is implemented and periodically reevaluated. As recipients take reasonable steps to provide meaningful access to federally assisted programs and activities for LEP persons, NASA will look favorably on intermediate steps recipients take that are consistent with this guidance, and that, as part of a broader implementation plan or schedule, move their service delivery system toward providing full access to LEP persons. This does not excuse noncompliance but instead recognizes that full compliance in all areas of a recipient's activities and for all potential language minority groups may reasonably require a series of implementing actions over a period of time. However, in developing any phased implementation schedule, NASA recipients should ensure that the provision of appropriate assistance for significant LEP populations or with respect to activities having a significant impact on beneficiaries is addressed first. Recipients are encouraged to document their efforts to provide LEP persons with meaningful access to federally assisted programs and activities.
National Indian Gaming Commission.
Notice.
The purpose of this notice is to inform the public of class III gaming ordinances approved by the Chairman of the National Indian Gaming Commission and to update and correct the last Notice published on August 26, 2002.
This notice is effective upon date of publication in the
Ms. Frances Fragua, Office of General Counsel at the National Indian Gaming Commission, 202/632-7003, or by facsimile at 202/632-7066 (not toll-free numbers).
The Indian Gaming Regulatory Act (IGRA) 25 U.S.C. 2701
The IGRA requires all tribal gaming ordinances to contain the same requirements concerning ownership of the gaming activity, use of net revenues, annual audits, health and safety, background investigation and licensing of key employees. The Commission, therefore, believes that publication of each ordinance in the
On August 26, 2002, the Commission published a list of tribes for which the Chairman had previously approved tribal gaming ordinances authorizing class III gaming. It was later discovered that this list was incomplete. Therefore, the following list of tribes constitutes an update and correction to the notice published on August 26, 2002.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
The U.S. Nuclear Regulatory Commission (NRC or the Commission) has issued Amendment 13 to Materials License SNM-2502 held by Carolina Power & Light Company (CP&L) for the receipt, possession, transfer, and storage of spent fuel at the H.B. Robinson Independent Spent Fuel Storage Installation (ISFSI), located in Darlington County, South Carolina. The amendment is effective as of the date of issuance.
By application dated September 3, 2003, CP&L requested an amendment to Materials License SNM-2502 for the H.B. Robinson ISFSI to make editorial changes to the technical specifications. The request involved changing the drawing numbers referenced in section 5 of Appendix A of the technical specifications from the original ISFSI vendor's numbers to the H.B. Robinson plant's numbers used for drawing control. The requested changes do not affect the design, operation, or surveillance of the ISFSI.
This amendment complies with the requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR chapter I, which are set forth in the license amendment.
In accordance with 10 CFR 72.46(b)(2), a determination has been made that the amendment does not present a genuine issue as to whether public health and safety will be significantly affected. Therefore, the publication of a notice of proposed action and an opportunity for hearing or a notice of hearing is not warranted. Notice is hereby given of the right of interested persons to request a hearing on whether the action should be rescinded or modified.
The Commission has determined that the issuance of the amendment meets the criteria for a categorical exclusion set forth in 10 CFR 51.22(c)(10) of the regulations. Therefore, an environmental assessment need not be prepared in connection with issuance of the amendment.
The request for amendment was docketed under 10 CFR part 72, Docket 72-3. For further details with respect to this action, see the amendment request dated September 3, 2003, which is available for public inspection at the Commission's Public Document Room, One White Flint North Building, 11555 Rockville Pike, Rockville, MD or from the publicly available records component of NRC's Agencywide Documents Access and Management System (ADAMS) under Accession No. ML032510880. The NRC maintains ADAMS, which provides text and image files of NRC's public documents. These documents may be accessed through the NRC's Public Electronic Reading Room on the Internet at
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of issuance; correction.
This document corrects a notice appearing in the
Frank Rinaldi, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone (301) 415-1447, e-mail:
On page 65093, in the first column, in the third complete paragraph, first line, it is corrected to read from “December 2, 2003” to “December 18, 2003”.
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an amendment to Renewed Facility Operating License Nos. DPR-32 and DPR-37, issued to Virginia Electric and Power Company (the licensee), for operation of the Surry Power Station, Unit Nos. 1 and 2, Surry County, Virginia. As required by 10 CFR 51.21, the NRC is issuing this environmental assessment and finding of no significant impact.
The proposed action would allow the licensee to correct various administrative and editorial errors to the Surry Technical Specifications (TS) in accordance with the licensee's application dated December 19, 2002, as supplemented by letter dated October 20, 2003.
The proposed action corrects administrative and editorial errors to the Surry TS.
The NRC has completed its evaluation of the proposed action and concludes, as set forth below, that there are no significant environmental impacts associated with the proposed changes to the Surry TS.
The proposed action will not significantly increase the probability or consequences of accidents, no changes are being made in the types of effluents that may be released off site, and there is no significant increase in occupational or public radiation exposure. Therefore, there are no significant radiological environmental impacts associated with the proposed action.
With regard to potential non-radiological impacts, the proposed action does not have a potential to affect any historic sites. It does not affect non-radiological plant effluents and has no other environmental impact. Therefore, there are no significant non-radiological environmental impacts associated with the proposed action.
Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action.
As an alternative to the proposed action, the staff considered denial of the proposed action (
The action does not involve the use of any different resource than those previously considered in the Final Environmental Statement for the Surry Power Station, Unit Nos. 1 and 2, dated May 1972 and June 1972, respectively.
On November 21, 2003, the staff consulted with the Virginia State official, Mr. Les Foldesi of the Virginia Department of Radiological Health, regarding the environmental impact of the proposed action. The State official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's letter dated December 19, 2002, as supplemented by letter dated October 20, 2003. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
Weeks of December 15, 22, 29, 2003, January 5, 12, 19, 2004.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the Week of December 22, 2003.
There are no meetings scheduled for the Week of December 29, 2003.
There are no meetings scheduled for the Week of January 5, 2004.
This meeting will be webcast live at the Web address
There are no meetings scheduled for the Week of January 19, 2004.
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292. Contact person for more information: Timothy J. Frye, (301) 415-1651.
By a vote of 3-0 on December 9, the Commission determined pursuant to U.S.C. 552b(e) and 9.107(a) of the Commission's rules that “Affirmation of Duke Energy Corporation (McGuire Nuclear Station, Units 1 & 2, Catawba Nuclear Station Units 1 & 2) Petition for Review of LBP-03-17” be held on December 9, and on less than one week's notice to the public.
The NRC Commission Meeting Schedule can be found on the Internet at:
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rules 8b-1 to 8b-32 (17 CFR 270.8b-1 to 8b-32) under the Investment Company Act of 1940 (15 U.S.C. 80a) (the “Act”) are the procedural rules an investment company must follow when preparing and filing a registration statement. These rules were adopted to standardize the mechanics of registration under the Act and to provide more specific guidance for persons registering under the Act than the information contained in the statute. For the most part, these procedural rules do not require the disclosure of information. Two of the rules, however, require limited disclosure of information.
The Commission does not estimate separately the total annual reporting and recordkeeping burden associated with rules 8b-1 to 8b-32 because the burden associated with these rules are included in the burden estimates the Commission submits for the investment company registration statement forms (
Written 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 will have practical utility; (b) the accuracy of the agency's estimate of the burden 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
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.
Securities and Exchange Commission (“Commission”).
Notice of application for deregistration under section 8(f) of the Investment Company Act of 1940 (the “Act”).
Bexil Corporation requests an order declaring that it has ceased to be an investment company.
Secretary, Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Applicant, c/o Stephanie A. Djinis, Law Offices of Stephanie A. Djinis, 1749 Old Meadow Road, Suite 310, McLean, VA 22102.
Jaea F. Hahn, Senior Counsel, at (202) 942-0614, or Todd F. Kuehl, Branch Chief, at (202) 942-0564 (Office of Investment Company Regulation, Division of Investment Management).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, NW., Washington, DC 20549-0102 (tel. 202-942-8090).
1. From 1986 through 1996, applicant's predecessor operated as a diversified series of shares of Bull & Bear Funds II, Inc., an open-end management investment company organized in 1974 under the laws of the State of Maryland and registered under the Act. Applicant was incorporated under the laws of the State of Maryland as Bull & Bear U.S. Government Securities Fund, Inc. on August 30, 1996. On September 27, 1996, applicant registered under the Act as a closed-end management investment company. Applicant changed its name to Bexil Corporation on August 26, 1999. On November 28, 2000, applicant's stockholders approved a proposal to change the nature of applicant's business so as to cease to be an investment company and become an operating company. On June 13, 2001, applicant's board of directors (the “Board”) terminated its management contract with an outside investment adviser effective July 31, 2001, and authorized applicant's officers to manage applicant's business affairs.
2. On January 18, 2002, applicant acquired 50% of the outstanding voting stock of York Insurance Services Group, Inc. (“York”), a newly formed Delaware corporation. On that same date, York purchased all of the outstanding stock of certain subsidiaries of AIG Insurance Services, Inc. (“AIGIS”), a Delaware corporation. These subsidiaries have served as independent adjustment companies and third party administrators providing claims, data, and risk related services to insurers, insureds, and intermediaries located throughout the United States. Applicant states that York is not an investment company as defined in section 3(a) of the Act.
3. Mr. Thomas MacArthur (“MacArthur”), York's chairman and chief executive officer, owns the remaining 50% of York's outstanding stock. Pursuant to a stockholder's agreement among MacArthur, York and the applicant, York's board of directors consists of five members; each of MacArthur and the applicant has the right to nominate two members and AIGIS has the right to nominate one member.
1. Section 8(f) of the Act provides that whenever the Commission, upon application or its own motion, finds that a registered investment company has ceased to be an investment company, the Commission shall so declare by order and upon the taking effect of such order, the registration of such company shall cease to be in effect.
2. Section 3(a)(1)(A) of the Act defines an investment company as any issuer which “is or holds itself out as being engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting, or trading in securities.” Section 3(a)(1)(C) of the Act defines an investment company as any issuer which “is engaged or proposes to engage in the business of investing, reinvesting, owning, holding, or trading in securities, and owns or proposes to acquire investment securities having a value exceeding 40 per centum of the
3. Applicant states that it no longer meets the definition of investment company under the Act, and that it is thus qualified for an order of the Commission pursuant to section 8(f) of the Act. Applicant states that after entry of the order requested by the application, it will continue to be a publicly-held company listed on the American Stock Exchange and will continue to be subject to the reporting and other requirements of the Securities Exchange Act of 1934.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to approve for listing and trading under section 107A of the Amex Company Guide (“Company Guide”), trust certificates linked to a basket of investment grade fixed income debt instruments.
In its filing with the Commission, the Amex 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 III below. The Amex has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Under section 107A of the Company Guide, the Exchange may approve for listing and trading securities which cannot be readily categorized under the listing criteria for common and preferred stocks, bonds, debentures, or warrants.
The ABS Securities will conform to the initial listing guidelines under section 107A
However, due to the pass-through and passive nature of the ABS Securities, the Exchange intends to rely on the assets and stockholder equity of the issuers of the Underlying Corporate Bonds, rather than the Trust to meet the requirement in section 107A of the Company Guide. The corporate issuers of the Underlying Corporate Bonds will meet or exceed the requirements of section 107A of the Company Guide. The distribution and principal amount/aggregate market value requirements found in section 107A(b) and (c), respectively, will otherwise be met by the Trust as issuer of the ABS Securities. In addition, the Exchange for purposes of including Treasury Securities will rely on the fact that the issuer is the United States government rather than the asset and stockholder tests found in section 107A.
The basket of Underlying Securities will not be managed and will generally remain static over the term of the ABS Securities. Each of the Underlying Securities provides for the payment of interest on a semi-annual basis and the ABS Securities will also provide for interest distributions on a semi-annual basis. The Treasury Securities will not make periodic payments of interest.
In the case of Treasury Securities, the Trust will either purchase the securities directly from primary dealers or in the secondary market, which consists of primary dealers, non-primary dealers, customers, financial institutions, non-financial institutions and individuals.
Holders of the ABS Securities generally will receive interest on the face value in an amount to be determined at the time of issuance of the ABS Securities and disclosed to investors. The rate of interest payments will be based upon prevailing interest rates at the time of issuance and made to the extent that coupon payments are received from the Underlying Securities. Distributions of interest will be made semi-annually. Investors will also be entitled to be repaid the principal of their ABS Securities from the proceeds of the principal payments on the Underlying Securities.
The ABS Securities will mature on the latest maturity date of the Underlying Securities. Holders of the ABS Securities will have no direct ability to exercise any of the rights of a holder of an Underlying Corporate Bond; however, holders of the ABS Securities as a group will have the right to direct the Trust in its exercise of its rights as holder of the Underlying Securities.
The proposed ABS Securities are substantially similar to various Select Note Trust securities currently listed and traded on the Exchange.
The Exchange's Bond and Debenture Listing Standards in section 104 of the Company Guide provide for the listing of individual bond or debenture issuances provided the issue has an aggregate market value or principal amount of at least $5 million and any of: (1) The issuer of the debt security has equity securities listed on the Exchange (or on the New York Stock Exchange (“NYSE” or on the Nasdaq National Market (“Nasdaq”)); (2) an issuer of equity securities listed on the Exchange (or on the NYSE or on the Nasdaq) directly or indirectly owns a majority interest in, or is under common control with, the issuer of the debt security; (3) an issuer of equity securities listed on the Exchange (or on the NYSE or on the Nasdaq) has guaranteed the debt security; (4) an NRSRO has assigned a current rating to the debt security that is no lower than an S&P Corporation (“S&P”) “B” rating or equivalent rating by another NRSRO; or (5) or if no NRSRO has assigned a rating to the issue, an NRSRO has currently assigned (i) an investment grade rating to an immediately senior issue or (ii) a rating that is no lower than a S&P “B” rating or an equivalent rating by another NRSRO to a pari passu or junior issue.
In addition to the Exchange's Bond and Debenture Listing Standards, an Underlying Security must also be of investment grade quality as rated by an NRSRO and at least 75% of the underlying basket is required to contain Underlying Securities from issuances of $100 million or more. The maturity of each Underlying Security is expected to match the payment of principal of the ABS Securities with the maturity date of the ABS Securities being the latest maturity date of the Underlying Securities. Amortization of the ABS
Investors will be able to obtain the prices for the Underlying Securities through Bloomberg L.P. or other market vendors, including the broker-dealer through whom the investor purchased the ABS Securities.
Price and transaction information for Treasury Securities may also be obtained at
The ABS Securities will be listed in $25 denominations with the Exchange's existing equity floor trading rules applying to trading. First, pursuant to Amex Rule 411, the Exchange will impose a duty of due diligence on its members and member firms to learn the essential facts relating to every customer prior to trading the ABS Securities.
The Exchange represents that its surveillance procedures are adequate to properly monitor the trading of the ABS Securities. Specifically, the Amex will rely on its existing surveillance procedures governing equity, which have been deemed adequate under the Act. In addition, the Exchange also has a general policy, which prohibits the distribution of material, non-public information by its employees.
The Exchange believes that the proposed rule change is consistent with section 6 of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition.
The Exchange did not receive any written comments on the proposed rule change.
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. Comments may also be submitted electronically at the following e-mail address:
After careful consideration, 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, and, in particular, with the requirements of section 6(b)(5) of the Act.
As described more fully above, the ABS Securities are asset-backed securities and represent a repackaging of the Underlying Corporate Bonds together with the addition of Treasury Securities, subject to certain distribution of interest obligations of the Trust. The ABS Securities are not leveraged instruments. The ABS Securities are debt instruments whose price will still be derived and based upon the value of the Underlying Securities. The Exchange represents that the value of the Underlying Securities will be determined by one or more market makers, in accordance with the Exchange rules. Investors are guaranteed, subject to certain conditions, at least the principal amount that they paid for the Underlying Securities.
The Commission notes that the Exchange's rules and procedures that address the special concerns attendant to the trading of hybrid securities will be applicable to the ABS Securities. In particular, by imposing the hybrid listing standards, suitability, disclosure, and compliance requirements noted above, the Commission believes the Exchange has addressed adequately the potential problems that could arise from the hybrid nature of the ABS Securities. Moreover, the Commission notes that the Exchange will distribute a circular to its membership calling attention to the specific risks associated with the ABS Securities.
The Commission notes that the ABS Securities are dependent upon the individual credit of the issuers of the Underlying Securities. To some extent this credit risk is minimized by the Exchange's listing standards in section 107A of the Company Guide which provide that only issuers satisfying asset and equity requirements may issue securities such as the ABS Securities. In addition, the Exchange's “Other Securities” listing standards further provide that there is no minimum holder requirement if the securities are traded in thousand dollar denominations.
Due to the pass-through and passive nature of the ABS Securities, the Commission does not object to the Exchange's reliance on the assets and stockholder equity of the Underlying Securities rather than the Trust to meet the requirement in section 107A of the Company Guide. The Commission notes that the distribution and principal amount/aggregate market value requirements found in sections 107A(b) and (c), respectively, will otherwise be met by the Trust as issuer of the ABS Securities. Thus, the ABS Securities will conform to the initial listing guidelines under section 107A and continued listing guidelines under sections 1001-1003 of the Company Guide, except for the assets and stockholder equity characteristics of the Trust. At the time of issuance, the Commission also notes that the ABS Securities will receive an investment grade rating from an NRSRO.
The Commission also believes that the listing and trading of the ABS Securities should not unduly impact the market for the Underlying Securities or raise manipulative concerns. As discussed more fully above, the Exchange represents that, in addition to requiring the issuers of the Underlying Securities meet the Exchange's section 107A listing requirements (in the case of Treasury securities, the Exchange will rely on the fact that the issuer is the U.S. government rather than the asset and stockholder tests found in section 107A), the Underlying Securities will be required to meet or exceed the Exchange's Bond and Debenture Listing Standards pursuant to section 104 of the Amex's Company Guide, which among other things, requires that underlying debt instrument receive at least an investment grade rating of “B” or equivalent from an NRSRO. Furthermore, at least 75% of the basket is required to contain Underlying Securities from issuances of $100 million or more. The Amex also represents that the basket of Underlying Securities will not be managed and will remain static over the term of the ABS securities. In addition, the Amex's surveillance procedures will serve to deter as well as detect any potential manipulation.
The Commission notes that the investors may obtain price information on the Underlying Securities through market venders such as Bloomberg, L.P., or though Web sites such as
The Commission finds good cause for approving the proposed rule change prior to the 30th day after the date of publication of notice thereof in the
Is it therefore ordered, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change provides for a processing enhancement to the Profile Modification System (“Profile”) of the Direct Registration System (“DRS”) by eliminating the matching criteria for the investor's account registration for certain DRS transactions using Profile.
In its filing with the Commission, DTC 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. DTC has prepared summaries, set forth in sections (A), (B) and (C) below, of the most significant aspects of these statements.
The purpose of the proposed rule change is to enhance Profile processing by eliminating investor's account registration information
DTC's Profile System will be enhanced to accommodate the registration elimination for incoming and outgoing files. The following rules will apply to Profile transactions submitted by participants and DRS limited participants:
• For Profile transactions where the participant or limited participant inputs the investor's SS or TIN, DTC will no longer require registration information. DTC will not forward the registration information to the party receiving the Profile instruction.
• The registration information will be required when a participant or DRS limited participant does not know the investor's SS or TIN or that information is not available. Participants and DRS limited participants will be required to input nine “1s” if the SS or TIN is not known or input nine “9s” if the SS or TIN is not available (as in the case of a foreign investor) and to input the investor's registration as it appears on the investor's DRS statement. DTC will forward the registration information to the party receiving the Profile instruction.
DTC believes that the proposed rule change is consistent with the requirements of Section 17A of the Act
DTC does not believe that the proposed rule change will have any impact or impose any burden on competition.
Written comments relating to the proposed rule change have not yet been solicited or received. DTC will notify the Commission of any written comments received by DTC.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(iii)
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. Comments may also be submitted electronically at the following e-mail address:
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The ISE is proposing to amend its rules governing firm quotations. The text of the proposed rule change is available at the Office of the Secretary, ISE and at the Commission.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to require ISE market makers to be firm for the stated size of their quotations in all instances. Earlier this year, the Exchange moved to “one size” for market maker quotations.
The ISE originally proposed the limited exception to the one-size rule to help limit market makers' risk during the transition to one size. Because quotations often change across multiple series in an options class, a market maker could be at risk when multiple quotes “hit” the quotes of other market makers and multiple trades occur. At the time the ISE moved to one size, the Commission granted the ISE an exemption from the firm quote rule
The ISE states that the basis under the Act for this proposed rule change is the requirement under Section 6(b)(5) of the Act,
The ISE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The ISE has not solicited, and does not intend to solicit, comments on this proposed rule change. The ISE has not received any unsolicited written comments from members or other interested parties.
Within 35 days of the date of publication of this notice in the
(a) by order approve such proposed rule change; or
(b) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Comments may also be submitted electronically at the following e-mail address:
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Section, 450 Fifth Street, NW., Washington, DC 20549. Copies of such filing will also be available for inspection and copying at the principal office of the ISE. All submissions should refer to File No. SR-ISE-2003-34 and should be submitted by January 6, 2004.
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”),
NASD filed the proposed rule change with the Commission (1) to amend NASD Rule 3010(g)(2) to revise the definition of the term “branch office'; and (2) to adopt IM-3010-1 to provide guidance on factors to be considered by a member firm in conducting internal inspections of offices. NASD represents that the purpose of the proposed rule change is to facilitate the creation of a branch office registration system through the Central Registration Depository (“CRD”)
In addition, NASD represents that the proposed rule change is part of NASD's rule modernization initiative to streamline and update NASD Rules while preserving investor protections. The proposed definition establishes a broader national standard and is the product of a coordinated effort among regulators to reduce inconsistencies in the definitions used by the Commission, NASD, the NYSE, and state securities regulators in identifying locations where broker/dealers conduct securities or investment banking business. The proposed rule change is set forth below. Proposed new language is in
(a) through (f) No change.
(1) No Change.
(2) [“Branch Office” means any location identified by any means to the public or customers as a location at which the member conducts an investment banking or securities business, excluding:]
[(A) any location identified in a telephone directory line listing or on a business card or letterhead, which listing, card, or letterhead also sets forth the address and telephone number of the branch office or OSJ of the firm from which the person(s) conducting business at the non-branch locations are directly supervised;]
[(B) any location referred to in a member advertisement, as this term is defined in Rule 2210, by its local telephone number and/or local post office box provided that such reference may not contain the address of the non-branch location and, further, that such reference also sets forth the address and telephone number of the branch office or OSJ of the firm from which the person(s) conducting business at the non-branch location are directly supervised; or]
[(C) any location identified by address in a member's sales literature, as this term is defined in Rule 2210, provided that the sales literature also sets forth the address and telephone number of the branch office or OSJ of the firm from which the person(s) conducting business at the non-branch locations are directly supervised.]
[(D) any location where a person conducts business on behalf of the member occasionally and exclusively by appointment for the convenience of customers, so long as each customer is provided with the address and telephone number of the branch office or OSJ of the firm from which the person conducting business at the non-branch location is directly supervised.]
[(3) A member may substitute a central office address and telephone number for the supervisory branch office or OSJ locations referred to in paragraph (g)(2) above provided it can demonstrate to the Association's District Office having jurisdiction over the member that it has in place a significant and geographically dispersed supervisory system appropriate to its business and that any investor complaint received at the central site is provided to and resolved in conjunction with the office or offices with responsibility over the non-branch business location involved in the complaint.]
In its filing with the Commission, NASD included statements concerning the purpose of and basis for the proposed rule change, as amended, 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. NASD has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
While NASD believes that its current branch office definition effectively meets its regulatory objectives, NASD appreciates that a uniform branch office definition would create a broader national standard that would minimize compliance burdens for members. Adoption of the proposed branch office definition by NASD and state securities administrators would facilitate the creation of a centralized branch office registration system through the CRD
Currently, there is no uniform approach among regulators for classifying locations from which registered representatives regularly conduct the business of effecting transactions in securities. The Commission, the NYSE, and state securities regulators all define the term “branch office” (or similar term) differently; and the term has different significance based on who classifies it. As a result, a member must comply with multiple definitions in each jurisdiction in which it conducts a securities business. This requires tracking numerous definitions, filing multiple forms to register and/or renew registration of such locations, meeting various deadlines, and continually monitoring each jurisdiction for changes in rules or procedures.
NASD member firms are currently required to complete Schedule E to the Form BD (“Schedule E”) to register or report branch offices to the Commission, NASD, and with particular state(s) in which they conduct a securities business that requires branch office registration. While Schedule E does capture certain data with respect to branch offices, NASD represents that both its staff and state regulators believe that Schedule E does not adequately fulfill their regulatory needs. For example, Schedule E does not link an individual registered representative with a particular branch office; this can make it difficult for state regulators to track down individual persons during examinations. In addition, member firms have said that Schedule E is a burdensome and time-consuming method by which to register branch offices. Since numerous states have varying branch office definitions, members must understand and comply with the requirements in each individual state. Further, updates or amendments to Schedule E do not update or amend an individual registered representative's Form U-4. Currently, a firm must amend these forms separately and there is no method to alert firms or regulators if the information on the two forms differs. NASD believes that the proposed branch office registration system through CRD” would alleviate most, if not all, of these concerns.
As a result, NASD has been working with the North American Securities Administrators Association (“NASAA”), and the NYSE to reduce the inconsistencies that currently exist among the various ways in which locations are defined in order to increase the utility of CRD” as a central branch office registration system for NASD, other self-regulatory organizations, and states. NASD staff has held numerous meetings with other regulators over the past three years with the purpose of achieving this goal. NASD represents that these meetings ultimately proved successful as the parties have reached agreement on a core proposed uniform definition which largely tracks the Commission's definition of “office” in the books and records rules, Rule 17a-3 and Rule 17a-4 (the “Books and Records Rules”) under the Act.
The proposed definition would contain several exceptions from branch office registration. The single difference to a common definition among regulators concerns the registration of certain primary residences as branch offices “ NASD and NASAA support a primary residence exception that provides for limitations on the activities (
NASD currently defines a branch office as any location identified by any means to the public or customers as a location at which the member conducts an investment banking or securities business. The definition provides that the following activities would not be deemed “holding out” and, therefore, would not trigger registration of the location as a branch office: (1) A location identified in a telephone directory, business card, or letterhead; (2) a location referred to in a member advertisement; (3) a location identified in a member's sales literature; and (4) any location where a person conducts business on behalf of the member only occasionally; provided, in each case, the phone number and address of the branch office or Office of Supervisory Jurisdiction (“OSJ”) that supervises the location is also identified. NASD designates locations from which associated persons work as either branch offices or unregistered locations. This designation primarily affects the supervisory responsibilities of, and the fees paid by, members. An office that is designated a “branch office” under NASD rules must pay an annual registration fee and have a branch manager on site. A branch office is further classified as an OSJ if any one of the following enumerated activities occurs at the location: order execution, maintenance of customer funds and securities, final approval of new accounts and advertisements, review of customer orders, and supervision of associated persons at other branch offices. NASD represents that an office that is designated an OSJ must have a registered principal on-site and be inspected on an annual basis.
The core definition in the proposed uniform definition largely tracks the
The proposed rule change would define a “branch office” as any location where one or more associated persons of a member regularly conduct the business of effecting any transactions in, or inducing or attempting to induce the purchase or sale of, any security, or that is held out as such.
The proposed rule change would exclude from registration as a branch office: (1) A location that operates as a back office; (2) a representative's primary residence provided it is not held out to the public and certain other conditions are satisfied; (3) a location, other than the primary residence, that is used for less than 30 business days annually for securities business, is not held out to the public as an office, and satisfies certain of the conditions set forth in the primary residence exception; (4) a location of convenience used occasionally and by appointment; (5) a location used primarily for non-securities business and from which less than 25 securities transactions are effected annually; (6) the floor of an exchange; and (7) a temporary location used as part of a business continuity plan.
In developing the proposed definition, NASD understands the need to provide reasonable exceptions from branch office registration that take into account technological innovations and current business practices without compromising the need for investor protection. NASD believes the proposed exceptions from branch office registration are practically based while still containing important safeguards and limitations to protect investors. For example, the exception from branch office registration for customer service/back office locations would require that no sales activities would be able to be conducted from such locations and such locations would not be able to be held out to the public.
Further, the primary residence exception contains significant safeguards, including that: the location cannot be held out to the public; only one associated person or associated persons who are members of the same immediate family and reside at the location may conduct business at such location; the associated person does not meet with customers at the location; neither customer funds nor securities are handled at that location; the associated person must be assigned to a designated branch office; and such branch office is used on all business cards, stationery, advertisements, and other communications to the public; the associated person's correspondence and communications with the public are subject to the firm's supervision; electronic communications are made through the firm's system; all orders are entered through the designated branch office or an electronic system established by the member and reviewable at such location; written supervisory procedures pertaining to supervision of sales activities conducted at the residence are maintained by the member; and the member maintains a list of the locations. These limitations closely track the limitations on the use of a private residence in the Commission's Books and Records Rules which provide that a broker/dealer is not required to maintain records at an office that is a private residence if only one associated person (or multiple associated persons if members of the same family) regularly conducts business at the office, the office is not held out to the public as an office, and neither customer funds nor securities are handled at the office.
As noted above, in addition to these limitations on the primary residence exception, the NYSE believes that if an associated person works primarily from home, such location should be registered as a branch office.
NASD reached its conclusions as to the significant negative impact of the 50-business day requirement on members, without any added corresponding regulatory benefit or investor protection, after considering comments received in response to NASD Notice to Members 02-52. As discussed below, numerous firms asserted that the 50-business day requirement in the primary residence exception to the branch office definition would be burdensome, time consuming, and difficult to enforce. NASD concluded that limited member compliance resources could be more effectively directed to supervising activities at all locations, rather than tracking the number of days and hours an associated person works from his or her primary residence. NASD strongly believes that the numerous other safeguards that would need to be satisfied to qualify for the primary residence exception serve its regulatory needs and protect investors.
The proposed definition also would exempt from branch office registration a temporary location, other than a primary residence, that is used for securities business less than 30-business days in any calendar year. The limitations on the use of a primary residence described above also would apply to use of a temporary location for conducting securities business.
In exempting offices of convenience from branch office registration, NASD believes that it again has imposed important safeguards for the public. At such offices of convenience, associated persons would be limited to meeting customers occasionally and exclusively by appointment, and the location would not be permitted to be held out to the public as a branch office. The proposed rule notes, however, that where such office of convenience is located on bank premises, signage necessary to comply with applicable federal and state laws, rules and regulations, and applicable rules and regulations of NASD, other self-regulatory organizations, and securities or banking regulators would
The proposed rule also exempts from branch office registration any location that is primarily used to engage in non-securities activities (
Certain state securities regulators have expressed concern about their ability to cite members for violating the inspection and review standards set forth in NASD Rule 3010(c) where a registered person operates from his or her primary residence. They asked NASD staff to review the requirements of Rule 3010(c) and consider clarifying the standards.
NASD staff believes that Rule 3010(c) is an industry benchmark, imposing high standards regarding supervisory obligations and, therefore, should not be amended. As an alternative to amending Rule 3010(c), NASD is proposing new interpretive material, IM-3010-1 (Standards for Reasonable Review). Proposed IM-3010-1 emphasizes the requirement that members already have to establish reasonable supervisory procedures and conduct reviews of locations taking into consideration, among other things, the firm's size, organizational structure, scope of business activities, number and location of offices, the nature and complexity of products and services offered, the volume of business done, the number of associated persons assigned to a location, whether a location has a principal on-site, whether the office is a non-branch location, and the disciplinary history of the registered person.
NASD operates the CRD
As part of the initiative, NASD expects to seek Commission approval to amend Form U-4 to require members to disclose, but not register, all non-branch locations.
NASD expects to develop a new branch office registration form to collect data on each branch office. The new form also would require members to designate registered representatives to specific branch offices. NASD staff expects the system would include certain efficiencies; for example, when a member enters amendments to Form U-4, the system would automatically update corresponding items on the proposed new branch office registration form and vice versa.
NASD believes that it would take up to one year to develop a centralized registration system for branch offices and expects to have the system live by mid-2004.
NASD believes that the proposed rule change, as amended, is consistent with the provisions of Section 15A of the Act,
NASD does not believe that the proposed rule change, as amended, would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
A version of the proposed rule change, which included the 50-business day requirement in the primary
NtM 02-52 provided members and other interested parties with a checklist of seven questions that they could use to respond to the request for comment in addition to, or in lieu of, sending written comments. NASD noted that the checklist did not cover all aspects of the proposal, and it encouraged commenters to provide written comments, as necessary. NASD extended the comment period from September 20, 2002 to October 21, 2002 and received a total of 137 comments in response to NtM 02-52. A list of commenters and copies of the comment letters received in response to NtM 02-52 is available at the principal office of NASD, and at the Commission.
NASD represents that seventy-eight of the 137 responses to NtM 02-52 consisted solely of written comments (
An overwhelming majority of the commenters were in favor of NASD providing centralized registration of branch offices through the CRD
Commenters expressed concern about the impact of the proposed definition on the supervisory systems of their firms and related registration costs.
In addition, commenters were concerned that the proposed definition would significantly increase the number of branch offices they would have to register. Commenters stated that they have between 0 and 225 branch offices currently registered but could have between 0 and 3,400 registered branch offices under the proposed uniform definition (based on a proposed definition that includes a 50-business day restriction in the primary residence exception). One commenter stated that with such definition, the firm would go from 1 to 700 registered branch offices.
Several commenters stated that any costs savings resulting from centralized registration of branch offices through CRD
As noted earlier, the proposed definition as set forth in NtM 02-52 provided an exception from branch office registration for a primary residence that is used for securities business for less than 50-business days in any one calendar year and that satisfies, among other things, conditions similar to those found in the Commission's Books and Records Rules definition for “office.” An overwhelming majority of the commenters stated that they could not support the proposed definition with a 50-business day requirement because it would be too burdensome, time consuming, and difficult to enforce.
Commenters, small firms in particular, stated that tracking the 50-business day requirement would introduce a tremendous compliance burden.
Commenters also noted that elimination of the 50-business day restriction would be consistent with the Books and Records Rules. They asserted that since the Books and Records Rules do not require records to be kept at these sites for examinations, there should be no reason to register a representative's primary residence regardless of the number of days it is used for securities business, provided the other conditions to the exception are satisfied.
Based on the comments to NtM 02-52, NASD is proposing to retain the definition described in NtM 02-52, without the 50-business day restriction contained in the primary residence exception. The elimination of the 50-business day requirement contained in the primary residence exception should mitigate the additional registration and supervisory burdens on firms that would result from the proposed rule change. In addition, NASD believes these modifications would not disrupt the business model used by many NASD member firms.
Commenters also expressed concern that the temporary location exception in the proposed definition is too restrictive. The proposed definition provides an exception from branch office registration for a location, other than a primary residence, that is used for securities business less than 30 business days in any one calendar year and that satisfies the other conditions set forth in the primary residence exception. Certain commenters asked that the 30-business day limitation be eliminated for many of the same reasons described above with respect to the 50-business day requirement in the primary residence exception. NASD, however, believes that limiting the number of days such location can be used is consistent with the intent of this exception. The exception from registration is for a temporary location, as opposed to a primary residence, and a bright-line test of what constitutes “temporary” is intended to make the application of this exception consistent.
Commenters also sought clarification as to the application of the office of convenience exception. The proposed definition provides an exception from branch office registration for any office of convenience, where associated persons occasionally and exclusively by appointment meet with customers, and that is not held out to the public. Commenters sought clarification on whether this exception applies to associated persons generally or is limited strictly to bank circuit riders.
Commenters also raised concerns about the non-securities business location exception. The proposed definition provides an exception from branch office registration for any location that is used primarily to engage in non-securities activities and from which the associated person(s) effects no more than 25 securities transactions in any one calendar year so long as the address/phone number of the supervising office is set forth on all
Commenters also stated that the proposed rule is not in step with the prevalent use of modern communications technology to effect transactions from remote locations because it continues to use a “bricks and mortar” approach to the definition.
Based on the comments to NtM 02-52, NASD is proposing changes to the original proposal as described above. NASD believes that these modifications would address a majority of concerns raised by commenters to the original proposal. Overall, NASD believes that the proposed definition would establish a broader national standard for classifying such locations and would provide administrative and cost efficiencies to members through the creation of a centralized registration system on CRD
NASD would announce the effective date of the proposed definition of the term “branch office” in a Notice to Members. NASD expects the effective date of the proposed rule change would correspond with the commencement date of the centralized branch office registration system on CRD
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change, as amended, or
B. Institute proceedings to determine whether the proposed rule change, as amended, should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. In particular, the Commission seeks commenters' specific views on the primary residence exception and the divergent proposals by NASD and the NYSE with respect to the NYSE's proposed annual 50-business day limitation on engaging in securities activities from a primary residence.
Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Comments may also be submitted electronically at the following e-mail address:
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
The NASD is proposing to create a new rule series, the proposed NASD Rule 9550 Series, to consolidate, clarify and streamline those existing procedural rules that have an expedited proceeding component. The text of the proposed rule change is available at the NASD and at the Commission.
In its filing with the Commission, the NASD included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in item IV below. The NASD has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The NASD proposes to modify certain NASD rules that have an expedited proceeding component to make them more understandable and uniform, and to make the overall process for actions covered by such rules more efficient. Existing NASD rules recognize that expedited treatment is needed for certain types of actions. These actions fall into two general categories: (i) Those that involve misconduct capable of causing further harm to the investing public, other members or the integrity of the markets; and (ii) those that can be appropriately expedited for administrative ease. Unlike disciplinary actions that may concern complex sales-practice violations, the expedited actions that are affected by this proposal generally involve straightforward issues unrelated to complicated securities transactions (
However, the present NASD rules that have provisions for fast-track procedures vary considerably in some respects and overlap in others, at times without any clear rationale. The proposed rule change, discussed in detail below, streamlines and clarifies the existing expedited rules and makes them more uniform. At the same time, the modifications, which do not abrogate any substantive rights held by members or associated persons, continue to ensure that expedited actions are fair to all parties. The current rules that have been renumbered and otherwise affected by the proposed rule change are as follows:
With this proposed rule change, the NASD believes that the first major improvement to the expedited proceedings provisions is that they are reorganized into a single rule series, the proposed NASD Rule 9550 Series, and each type of action is clearly labeled. At present, the various types of expedited proceedings are scattered throughout the NASD's rules, in many instances without clear headings,
The proposed amendments also consolidate some current expedited rules that have similar or overlapping provisions. For instance, current NASD Rules 8221(a) and (b) and 9541(a) and (b) have identical provisions that allow NASD staff to issue a notice of suspension if a member or associated person “fails to provide any information, report, material, data, or testimony.” These provisions are consolidated into a single rule, proposed NASD Rule 9552, under the proposed amendments. Similarly, current NASD Rules 9511(a)(2)(B) and 9541(c) both cover situations where a member or associated person fails to meet eligibility or qualification standards. Under the proposal, these provisions are now consolidated and clarified under the amendments as proposed NASD Rule 9555. The NASD believes that the consolidation of these various rules will alleviate the current confusion over which rule to use in a particular situation.
The proposed amendments, moreover, separate into individual rules some provisions, the consolidation of which has caused confusion. The proposed amendments, for example, separate the four “non-summary” actions currently located in NASD Rule 9511(a)(2) for failure to pay an arbitration award, failure to meet eligibility or qualification standards, failure to comply with certain public communication standards and failure to comply with a cease and desist order. The NASD believes that these provisions were not logically connected to one another; they are separated into individual rules under the proposed amendments.
In addition, the proposed rule change modifies the authorization provision for initiating certain summary proceedings. Pursuant to section 15A(h)(3) of the Act,
The proposed amendments also reorganize the hearing provisions of these various rules into a single rule within the new NASD Rule 9550 Series. The NASD believes that the new hearing rule, proposed NASD Rule 9559, creates a uniform, efficient and manageable expedited procedure consistent with the NASD's obligations to the investing public, the securities markets and NASD members. Under the proposal, a respondent may request a hearing at any time prior to the effective date of the action contained in the notice issued pursuant to the new NASD Rule 9550 Series. Under the present scheme, some rules have five-day periods while others have seven-day periods to request hearings,
The NASD believes that the proposed NASD Rule 9550 Series also simplifies the actual hearing process in a number of ways. First, the rule series channels all requests for hearings to the Office of Hearing Officers (“OHO”). At present, various expedited proceedings are held before different adjudicative bodies—
Furthermore, the NASD believes that the proposed NASD Rule 9550 Series provides respondents with greater protection by mandating that the action be stayed while the matter is pending, save for limited circumstances. The current rules with expedited components take different approaches as to whether a request for a hearing stays the action.
As indicated above, the NASD believes that the proposed NASD Rule 9550 Series streamlines the procedures for final NASD action. In general, hearings must be conducted and matters resolved within a specified, shortened timeframe once a respondent requests a hearing.
Once the hearing panel or Hearing Officer issues the initial decision, the NAC's Review Subcommittee has the ability to call the matter for review in a condensed timeframe. As is currently the case with most expedited rules, respondents will not have the right to appeal the matter to the NAC,
Finally, NASD no longer refers to itself or its subsidiary, NASD Regulation, Inc., using its full corporate name, ”the Association,” “the NASD”
The NASD believes that the proposed rule change is consistent with the provisions of section 15A(b)(6) of the Act,
The NASD does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change; or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Comments may also be submitted electronically at the following e-mail address:
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On July 23, 2003, the Pacific Exchange, Inc. (“PCX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
The PCX, through its wholly owned subsidiary, PCX Equities, Inc. (“PCXE”) proposed to adopt a new order type called a “Cross-and-Post Order.” The Cross-and-Post Order would be an order that is executed pursuant to the existing “Cross Order” rules
After careful review, the Commission finds that the proposed rule change is consistent with section 6(b) of the Act
The Commission believes that Cross-and-Post Orders will facilitate order interaction on ArcaEx and increase investor choices with respect to executing orders. Currently on ArcaEx, any portion of a Cross Order that remains unexecuted is canceled. Customers must then re-enter the residual portion of the order if they wish to have it posted in the Arca Book. The Commission believes that the Cross-and-Post Order will enable automatic electronic posting of the residual portion of the Cross-and-Post Order.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder.
It is therefore ordered, pursuant to section 19(b)(2) of the Act,
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
On September 5, 2003, the Pacific Exchange, Inc. (“PCX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The PCX proposes to offer ETP Holders the ability to display their identities with orders entered into the Archipelago Exchange (“ArcaEx”). The identity order feature would offer an ETP Holder the choice to display its unique ETP Identifier (“ETPID”) with a specified order. Alternatively, an ETP Holder may choose to remain anonymous.
Any identity orders entered into ArcaEx would be included in the Arca Book data feed that ArcaEx makes available free of charge to Users
ArcaEx would process orders designated as identity orders no differently from other orders sent to ArcaEx. PCXE Rules 7.36 (Order Ranking and Display) and 7.37 (Order Execution) set forth the order interaction process for orders entered on the ArcaEx. Orders designated as identity orders would be ranked, displayed, and executed under the same criteria (under PCXE Rules 7.36 and 7.37) as anonymous orders in the ArcaEx. ArcaEx has no capacity limitations on the number of identity orders that could be displayed for an individual security.
The purpose of the identity order feature is to provide more visibility to those ETP Holders who may choose to identify their ETPIDs with their trading interest in a particular security. The PCX believes that the identity order feature would benefit investors by increasing market transparency in an automatic execution venue such as ArcaEx. By providing a mechanism by which ETP Holders could display their identities, ArcaEx hopes to attract more orders and contribute more liquidity to the market while adding to the transparency of trading interest.
As noted above, the Commission received one comment in response to the proposed rule change, which supported the proposal. The commenter believed that allowing ETP Holders to choose to display their orders with their unique ETPIDs promotes market transparency in general and is therefore consistent with a key National Market System goal. The commenter also noted that the ability to trade on ArcaEx on an attributed or anonymous basis would be similar to the ability of participants in the Nasdaq Stock Market, Inc's SuperMontage to trade on an attributed basis using their own MPID or on an anonymous basis using the SIZE feature.
To facilitate the identity order feature, the PCX has proposed to amend PCXE Rules 7.7(b) and 7.36(b). Currently, PCXE Rule 7.7(b) prohibits an ETP Holder from transmitting information “regarding a bid, offer or other indication of an order” to a non-ETP Holder until the bid, offer or other indication of information has been disclosed and permission to transmit the information has been obtained from the originating ETP Holder. Conversely, PCXE Rule 7.36(b) provides for anonymity in displaying orders in the Display Order Process
The Exchange wishes to revise PCXE Rule 7.36(b) to state that except as
Additionally, the Exchange proposes to revise PCXE Rule 7.7(a)
In the proposed rule change, the PCX represented that identity orders would be centrally processed for execution by computer, subject to the same price, time, and priority rules that govern the automated matching and execution of orders. According to the PCX, the use of identity orders on ArcaEx would not confer ETP Holders any time and place advantages over other orders on ArcaEx, and would therefore comply with the requirements and policy concerns underlying section 11(a) of the Act.
Based, in part, on the PCX's representations, the Commission is approving the PCX's introduction of the identity order feature. The Commission finds that the proposed rule change, as amended, is consistent with the requirements of section 6 of the Act
It is therefore ordered, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to adopt Commentary .04 to Phlx Rule 1064, Crossing, Facilitation, and Solicited Orders, to allow the concurrent representation of hedging stock positions with option facilitation orders in the trading crowd (“Stock Tied Up Orders”). The text of the proposed rule change is set forth below. Text in italics indicates material to be added.
Rule 1064. (a)-(c) No change.
(d) No member organization or person associated with a member or member organization who has knowledge of the material terms and conditions of a solicited order, an order being facilitated, or orders being crossed, the execution of which are imminent, shall enter, based on such knowledge, an order to buy or sell an option for the same underlying security; an order to buy or sell the security underlying such class; or an order to buy or sell any related instrument until (i) the terms and conditions of the order and any changes in the terms of the order of which the member, member organization or person associated with a member or member organization has knowledge are disclosed to the trading crowd, or (ii) the trade can no longer reasonably be considered imminent in view of the passage of time since the order was received. For purposes of this Rule, an order to buy or sell a “related instrument” means, in reference to an index option, an order to buy or sell securities comprising 10% or more of the component securities in the index or an order to buy or sell a futures contract on an economically equivalent index.
.01-.03. No change.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Phlx represents that the purpose of the proposed rule change is to expressly adopt into Exchange rules concerning the handling of certain option orders, Stock Tied Up Orders, to bring clarity to the practice of representing hedging stock positions in conjunction with option orders in the trading crowd.
In a Stock Tied Up Order, Exchange members would be permitted to hedge a customer options order with the underlying security, and then forward the customer order and hedging stock position to a Floor Broker with instructions to represent the customer order together with the hedging stock position in the underlying security to the options crowd. Under the proposal, the trading crowd would have the choice to participate in the option portion of the transaction or both the option and stock hedging position.
The proposal would also include a number of conditions which must be satisfied both prior to the time a Stock Tied Up Order is represented to the options trading crowd, and concurrently with the representation of a Stock Tied Up Order in the trading crowd.
Currently, Exchange market participants trading options employ a number of strategies that involve multiple securities, including non-option components. For example, Exchange Rule 1066 permits Exchange members to engage in the trading of spread
(i) Buy-write: An example of a buy-write is an order to sell one call and buy 100 shares of the underlying stock or Exchange-Traded Fund Share.
(ii) Synthetic put: An example of a synthetic put is an order to buy one call and sell 100 shares of the underlying stock or Exchange-Traded Fund Share.
(iii) Synthetic call: An example of a synthetic call is an order to buy (or sell) one put and buy (or sell) 100 shares of the underlying stock or Exchange-Traded Fund Share.
The proposed rule would require members and member organizations to satisfy certain conditions prior to representing Stock Tied Up Orders in the crowd. First, members or member organizations would be required to create a written record that it is engaging in a Stock Tied Up Order prior to buying or selling any shares of the underlying stock in the hedging stock position. The Exchange states that the purpose of this provision is to create a record to ensure that stock trades would be appropriately associated with the related options order. The Exchange believes that this requirement should enable the Exchange to surveil for compliance with the requirements of proposed Commentary .04(b) of Phlx Rule 1064, as discussed below, by identifying the specific purchase or sell orders relating to the hedging stock position.
Secondly, proposed Commentary .04(b) of Phlx Rule 1064 would require that members and member organizations that have decided to engage in Stock Tied Up Orders for representation in the trading crowd would have to ensure that the hedging stock position associated with the Stock Tied Up Order is comprised of the same underlying stock applicable to the option order. For example, if the option component of the Stock Tied Up Order overlies XYZ stock, then the hedging stock position associated with the order would have to be XYZ stock. The Exchange states that the purpose of this provision is to ensure that the hedging stock position would be for the same stock as the overlying option, thus allowing crowd participants who may be considering participation in a Stock Tied Up Order to adequately evaluate the risk associated with the option as it relates to the actual underlying stock. Occasionally, crowd participants hedge option positions with stock that is related to the option, such as the stock of an issuer in the same industry, but not the actual stock associated with the option. The proposed rule change would not allow such a “related” hedging stock position, but would require the hedging stock position to be the actual security underlying the option.
The proposal would require that the hedging stock position be announced concurrently with the option order in the crowd, offered to the crowd in its entirety, and offered at the stock execution price received by the member organization introducing the order to any option crowd participant who has established parity or priority for the related options. The Phlx states that the purpose of these requirements is to ensure that the hedging stock position represented to the crowd would be a good faith effort to provide crowd participants with the same opportunity as the member or member organization introducing the Stock Tied Up Order to compete for the option order. For example, if the member or member organization introducing the Stock Tied Up Order were to offer 1,000 XYZ option contracts to the crowd (overlying 100,000 shares of XYZ stock) and concurrently offers only 30,000 shares of the underlying stock, crowd participants might only be willing or able to participate in 300 of the option contracts offered, if the hedging stock position cannot be obtained at a price as favorable as the stock hedging position offering price, if at all. The Exchange states that the effect of this would be to place the crowd at a disadvantage relative to the introducing member firm for the remaining 700 option contracts
In addition, the proposal would require that the hedging stock position not exceed the options order on a delta basis.
The proposed rule change would also require that the hedging stock order be transacted by the member or member organization introducing the Stock Tied Up Order promptly upon receipt of the option order, and, if brought to the Exchange, such order would be required to be brought without undue delay to the crowd. The Exchange believes that in many circumstances the member or member organization introducing the Stock Tied Up Order would best serve the interest of the customer by establishing the hedging stock position over a brief period of time, rather than by way of a block-sized market order that could be of high-impact to the stock price. However, the Exchange states that the “prompt” requirement of the proposed rule is intended to ensure that this working period be brief so that the hedging stock position could be brought to the Floor under optimal circumstances for crowd participants to compete most effectively. To accomplish this, the Exchange believes that the hedging stock position must be reasonably related to the price of the option order upon receipt of the option order. In the event a delay does occur and the stock price becomes unattractive as a hedge, the proposed rule would provide that the crowd participants could elect to participate in the option order without participating in the hedging stock position.
Finally, while the particular circumstances surrounding each transaction on the Exchange's options floor are different, the Exchange does not believe, as a general proposition, that the Stock Tied Up Order would be inherently harmful or detrimental to customers. The fact that the parties to such a trade end up fully hedged may contribute to the best execution of the orders, and, in any event, participants continue to be governed by, among other things, their best execution responsibilities.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were solicited or received.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing. In particular, the Commission seeks commenters' specific views on whether the proposed rule change is consistent with the Act. What would be the impact under the proposed rule change of allowing Phlx members to hedge large options orders while avoiding pressures on the market for the underlying securities that can result from the reporting of such options transactions to the tape? Would the proposed rule change violate prohibitions on front running? Should the proposed rule change provide specific standards to determine when a member's hedging stock position does not exceed the options order on a delta basis?
Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Comments may also be submitted electronically at the following e-mail address:
All submissions should refer to file number SR-Phlx-2003-75 and should be submitted by January 6, 2004.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Notice is hereby given that CVP SBIC, L.P., 1010 El Camino Real, Suite 250, Menlo Park, CA 94025, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern, has sought an exemption under section 312 of the Act and § 107.730, Financings Which Constitute Conflicts of Interest of the Small Business Administration (“SBA”) Rules and Regulations (13 CFR 107.730). CVP SBIC, L.P. proposes to provide equity/debt security financing to Telcontar. The financing is contemplated for national sales force expansion and working capital.
The financing is brought within the purview of § 107.730(a)(1) of the Regulations because Cardinal Venture Partners, L.P. and Cardinal Venture Affiliates, L.P., Associates of CVP SBIC, L.P., collectively own more than ten percent of Telcontar.
Notice is hereby given that any interested person may submit written comments on the transaction to the Associate Administrator for Investment, U.S. Small Business Administration, 409 Third Street, SW., Washington, DC 20416.
Department of State.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact the Office of the Legal Adviser, U.S. Department of State, (telephone: (202) 619-6982). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
Department of State.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 [79 Stat. 985, 22 U.S.C. 2459], the Foreign Affairs Reform and Restructuring Act of 1998 [112 Stat. 2681
For further information, including a list of the exhibit objects, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, (202) 619-5997, and the address is United States Department of State, SA-44, Room 700, 301 4th Street, SW., Washington, DC 20547-0001.
On November 25, 2003, Union Pacific Railroad Company (UP) and Stillwater Central Railroad Company (SLWC) filed a verified notice of exemption under 49 CFR 1180.2(d)(5) to participate in a joint project involving the relocation of certain rail lines of UP near the Fort Sill Military Reservation (FSMR) at Fort Sill, OK. The transaction was scheduled to be consummated on or after December 2, 2003.
The purpose of the joint relocation project is to permit the reconstruction of the wye tracks providing access to FSMR to accommodate larger rail cars. To allow the needed reconstruction, UP must remove certain existing main line track and relocate its operations over that track to a parallel line of SLWC. Thus, the joint relocation project notice covers the following actions:
(1) SLWC will grant trackage rights to UP (including rights to serve FSMR) over SLWC's line extending from SLWC milepost 624.65 near Fort Sill, OK, to SLWC milepost 628.0 near Lawton, OK, a distance of approximately 3.35 miles; and
(2) UP will abandon and remove approximately 1.04 miles of its line between UP milepost 48.56 and UP milepost 49.60 near Fort Sill, OK.
UP and SLWC state that the proposed project will not disrupt service to shippers. They also state that the relocated line and trackage rights will not involve an expansion of service by either carrier into a new territory, but rather, will enable UP to continue to serve FSMR once its line is abandoned and removed.
The Board will exercise jurisdiction over the abandonment or construction components of a relocation project, and require separate approval or exemption, only where the removal of track affects service to shippers or the construction of new track involves expansion into new territory.
As a condition to this exemption, any employees affected by the trackage rights will be protected by the conditions imposed in
If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34439, must be filed with the Surface Transportation Board, 1925 K Street NW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Robert T. Opal, Union Pacific Railroad Company, 1416 Dodge Street, Room 830, Omaha, NE 68179 and Craig R. Richey, Stillwater Central Railroad Company, 315 West 3rd Street, Pittsburg, KS 66767.
Board decisions and notices are available on our website at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Office of Thrift Supervision (OTS), Treasury.
Notice.
In a continuing effort to operate more efficiently, the Office of Thrift Supervision (OTS) has implemented a new system for processing checks it receives.
Effective October 31, 2003.
Howard Verp, Operating Accountant, (202) 906-6427; or Gina March, Operating Accountant, (202) 906-7247, Financial Operations, Information Systems, Administration & Finance, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.
OTS receives checks from customers for examination fees, application filings, conference registrations, security filings, and other purposes. The Bureau of Public Debt's Administrative Resource Center (ARC) now processes all checks received for OTS. ARC utilizes a Financial Management Service system to convert each check received for OTS into an electronic fund transfer.
The following guidelines apply:
By the Office of Thrift Supervision.
The United States Mint is inviting artists to participate in its new Artistic Infusion Program to help design United States coins and medals. The Artistic Infusion Program has been created to enrich and invigorate the design of United States coins and medals by developing a pool of up to 20 professional artists (Master Designers) and up to 20 college and graduate-level art students (Associate Designers) in sculpture, engraving, drawing, graphic design, painting, printmaking and other visual arts, who will be invited to create and submit new designs for selected coin and medal programs throughout the year.
The United States Mint encourages applications from talented artists, representing diverse backgrounds and a variety of interests reflecting those of the American people, who will look at coin design in new ways. Artists selected to participate in the program will be paid honoraria for their work, and those whose designs are used for certain coins and medals will be named as the designer in historical documents, including certificates of authenticity and promotional materials. Most importantly, the program provides the Nation's most gifted artists with the opportunity to contribute beautiful designs to coins that will be enjoyed by all Americans.
The National Endowment for the Arts has partnered with the United States Mint to evaluate artists' applications. Submissions will be evaluated on artistic excellence and merit.
An orientation session and designer symposium will be held for artists selected to participate in the program (attending at the Mint's expense) on Thursday and Friday, February 19 and 20, 2004, at the United States Mint in Philadelphia to learn about the history of United States coin and medal design, the coin making process and upcoming design opportunities.
Please Note: At this time, the Artistic Infusion Program is limited to coin and medal design (
Health Resources and Services Administration, HHS.
Interim final rule.
The Smallpox Emergency Personnel Protection Act of 2003 (SEPPA), authorizes the Secretary of Health and Human Services (the Secretary), to establish the Smallpox Vaccine Injury Compensation Program (“the Program”). This program is designed to provide benefits and/or compensation to certain persons harmed as a direct result of receiving smallpox covered countermeasures, including the smallpox vaccine, or as a direct result of contracting vaccinia through certain accidental exposures. In addition, the Secretary may provide death benefits to certain survivors of individuals who died as the direct result of these injuries.
On August 27, 2003, the Secretary published an interim final rule that set out a Smallpox (Vaccinia) Vaccine Injury Table (“the Table”). The table includes adverse effects (including injuries, disabilities, conditions, and deaths) within specific time periods that shall be presumed to result from the receipt of, or exposure to, the smallpox vaccine. The Secretary will use this table, as well as the procedures set out in this regulation, in deciding whether persons are eligible to receive benefits under the program.
In this interim final rule, the Secretary is setting out the administrative policies, procedures, and requirements governing the program, as authorized by the SEPPA. The Secretary is seeking public comment on this interim final rule.
This regulation is effective on December 16, 2003. Written comments must be submitted on or before February 17, 2004. The Secretary will consider the comments received and will decide whether to amend the current procedures and requirements based on such comments.
All written comments concerning this interim final rule should be submitted to the Director, Smallpox Vaccine Injury Compensation Program, Special Programs Bureau, Health Resources and Services Administration, Parklawn Building, Room 16C-17, 5600 Fishers Lane, Rockville, MD 20857. Express and courier mail should be sent to the Director, Smallpox Vaccine Injury Compensation Program, Special Programs Bureau, Health Resources and Services Administration, 4350 East-West Highway, 10th Floor, Bethesda, Maryland 20814. Electronic comments should be sent to
Paul T. Clark, Director, Smallpox Vaccine Injury Compensation Program, telephone 1-888-496-0338. This is a toll-free number. Electronic inquiries should be sent to
Before it was eradicated, smallpox (variola) was a serious illness that manifested as outbreaks of either variola major with death rates of greater than 20% or variola minor with death rates of almost 1%. The smallpox (vaccinia) vaccine (referred to in this rule as the “smallpox vaccine”) contains a live vaccinia virus that induces immunity to smallpox infection, but does not lead to variola infection or disease. Vaccinia virus is an orthopox type virus that is different from, but related to, the smallpox virus. The smallpox vaccine was an essential tool for the successful global eradication of the smallpox virus, announced by the World Health Organization in 1980. Despite such eradication, concern exists that terrorists may have access to the smallpox virus.
On December 13, 2002, the President announced a plan to protect the population of the United States against the threat of a possible smallpox attack. This plan was based on heightened concerns, in the wake of the attacks of September and October 2001, that terrorists may have access to the smallpox virus and may attempt to use it against the population of the United States and government facilities abroad. Under this plan, which the Secretary is actively working to implement, State and local governments have formed smallpox emergency response plans to facilitate the provision of critical services to the population of the United States in the event of a smallpox virus attack.
To further the President's plan, the Secretary issued a Declaration Regarding Administration of Smallpox Countermeasures on January 24, 2003 (68 FR 4212). This Declaration was issued pursuant to statutory authority, 42 U.S.C. 233(p)(2)(A), which was enacted by the Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135. In this Declaration, the Secretary stated that “a potential bioterrorist incident makes it advisable to administer, on a voluntary basis, covered countermeasures specified * * * for prevention or treatment of smallpox or control or treatment of adverse events related to smallpox vaccination, to [specified] categories of individuals * * *.” The specific “covered countermeasures” described in the Declaration are smallpox vaccines, cidofovir and its derivatives, and Vaccinia Immune Globulin. The categories of persons to whom the Secretary recommended the administration of such covered countermeasures, on a voluntary basis, included certain health care workers, certain public safety personnel, other members of smallpox emergency response plans identified by State or local government entities or the Department of Health and Human Services, and certain personnel associated with specific Federal facilities abroad. The Secretary recommended that such persons receive the smallpox vaccine to ensure the immediate mobilization of smallpox emergency response personnel who would provide critical services to the population of the United States in the event of a smallpox virus attack. The Secretary's Declaration became effective on January 24, 2003, and will remain effective until January 23, 2004, unless the Secretary extends or shortens that time period by amendment.
Under the Smallpox Vaccine Injury Compensation Program authorized by the SEPPA, certain persons may be entitled to benefits (defined as benefits and/or compensation) for covered injuries, described below, suffered as a direct result of the administration of smallpox covered countermeasures (including the smallpox vaccine) or accidental vaccinia inoculation. Specifically, the SEPPA authorizes the Secretary to make the benefits available to two categories of eligible persons who sustained covered injuries, provided
The first category, “smallpox vaccine recipients,” includes certain persons who volunteer for, and are selected to be members of, a smallpox emergency response plan, are vaccinated with a smallpox vaccine under such a plan, and sustain covered injuries. The second category, vaccinia contacts, includes certain persons who have covered injuries as the direct result of exposure to vaccinia through contact with certain persons who received the smallpox vaccine or with the contacts of such recipients. In addition, if a person in either category dies, his or her survivors or his or her estate may be eligible for selected benefits under this program in certain circumstances.
The benefits available under the program include compensation for medical care, lost employment income, and survivor death benefits. To be considered for program benefits, requesters (
As mandated under the SEPPA, the Secretary is herein, at 42 CFR part 102, establishing the procedures and requirements governing the program. At this time, the Secretary is seeking public comments on these procedures and requirements.
The benefits available under this program are medical benefits, benefits for lost employment income, and survivor death benefits.
As explained in § 102.2(b), the SEPPA establishes that the government is a secondary payor for most benefits available under the program. Thus, benefits paid under this program are generally secondary to any obligation of any third-party payor, described in § 102.3(aa), to pay for or provide such benefits. Requesters generally must provide the names of all other third-party payors that have already provided benefits, that are expected to do so in the future, or that may have a duty to do so. These payers include, but are not limited to: insurance companies, workers' compensation programs, the Federal Employees' Compensation Act (FECA) Program, or the Public Safety Officers' Benefit (PSOB) Program, a program within the United States Department of Justice that provides payments to public safety officers and their survivors, including death payments for officers killed in the line of duty. If such a third-party payor has paid for or provided the type of benefits requested under this program, the Secretary will only pay such benefits in an amount necessary to supplement the payments already provided. For example, if a requester were otherwise entitled to $10,000 in medical benefits from this program and the requester's health insurance company (a third-party payor) has paid $5,000 for the covered medical benefits and services, the program would pay the requester $5,000 (the amount the requester is entitled to under this program, reduced by the amount the requester is entitled to from third-party payors). As explained later in the preamble, upon payment of benefits under the Smallpox Vaccine Injury Compensation Program, the Secretary will be subrogated to the rights of the requester and may assert a claim against any third-party payor with a legal or contractual obligation to pay for, or provide, such benefits.
(1)
A person who has received a smallpox vaccine is only considered a “smallpox vaccine recipient,” for purposes of this program, if he or she meets the criteria described in this regulation. Specifically, he or she must have been in a covered occupation (including health care workers, law enforcement officers, public safety personnel, and supporting personnel), received a smallpox vaccine as a participant in an approved smallpox emergency response plan, and sustained a covered injury, described later in this preamble. The exact requirements for smallpox vaccine recipients are set forth in § 102.3(x). For example, this regulation provides that, in order to be eligible, a smallpox vaccine recipient must have received the smallpox vaccine between January 24, 2003, and January 23, 2004, unless the period is extended by the Secretary. In order to be covered by the program, a smallpox vaccine recipient must also have volunteered for and been selected to be a member of a smallpox emergency response plan before the time that the Secretary publicly announces that an active case of smallpox has been identified anywhere in the world. For this reason, persons who become members of smallpox emergency response plans in order to respond to a case of smallpox that has already occurred will not be considered “smallpox vaccine recipients.” Likewise, persons who receive the smallpox vaccine as members of the military or members of the public who receive the smallpox vaccine voluntarily, and not as part of an approved smallpox emergency response plan, are not entitled to benefits under the program.
(2)
The SEPPA imposes specific restrictions as to which persons who have contracted vaccinia from another person may be eligible for benefits under this program. The specific requirements pertaining to vaccinia contacts are set forth in § 102.3(bb). As explained in that section, vaccinia contacts are only eligible for benefits under this program if they can show that they contracted vaccinia as a result of contact with a person who either meets the definition of a smallpox vaccine recipient (except that the vaccine recipient does not need to sustain a covered injury) or who was accidentally inoculated by such a person. For this reason, if the source of a contact's exposure to vaccinia is a person who received a smallpox vaccine other than under an approved smallpox emergency response plan, the contact would not fall within the regulation's definition of a “vaccinia contact” and would not be eligible for benefits under the program. For example, the contacts of members of the military and State Department personnel who receive the smallpox vaccine for their employment, but not as part of an approved smallpox emergency response plan, would not be entitled to benefits under this program. Likewise, the contacts of members of the general public who receive the smallpox vaccine voluntarily, and not as part of an approved smallpox emergency response plan, would not be covered under this program. In addition, vaccinia contacts must have contracted vaccinia during the effective period of the Declaration (between January 24, 2003, and January 23, 2004, unless extended by the Secretary), or within 30 days after the end of such period, and must have sustained a covered injury.
(3)
Categories of eligible survivors and the priority of such survivors to receive benefits from the program are discussed in the section of this preamble concerning death benefits (the only type of benefit survivors are eligible to receive).
(4)
Representatives of estates of deceased smallpox vaccine recipients or vaccinia contacts may file Request Packages with the program as long as they are seeking benefits on behalf of the deceased person's estate.
An eligible requester who is a smallpox vaccine recipient or a vaccinia contact may be entitled to receive either medical benefits or benefits for lost employment income or both as long as they provide the proper documentation. For example, such requesters must submit documentation showing that they have out-of-pocket reasonable and necessary medical expenses as a result of a covered injury or its health complications in order to receive medical benefits, and documentation showing that they lost employment income as a result of a covered injury or its health complications in order to receive benefits for lost employment income. Such documentation requirements are discussed later in this preamble.
An eligible requester who is the survivor of a deceased smallpox vaccine recipient or vaccinia contact may be entitled to receive a death benefit.
The estate of a deceased smallpox vaccine recipient or vaccinia contact may be eligible to receive medical benefits or benefits for lost employment income or both if such benefits were accrued during the deceased person's lifetime as a direct result of a covered injury or its health complications, but were not paid during the deceased person's lifetime. However, the estate would not be eligible to receive payments for benefits that were not accrued during the deceased person's lifetime. For example, the estate would not be entitled to benefits for projected lost employment income that the person might have accrued if he or she had not died.
Covered injuries are defined in § 102.3(g) and set out in subpart C of this rule. Covered injuries are those injuries in smallpox vaccine recipients or vaccinia contacts that the Secretary determines are more likely than not (
One way that requesters can demonstrate that they sustained a covered injury is by demonstrating that they sustained an injury listed on the Smallpox (Vaccinia) Vaccine Injury Table (the table) within the required time interval, as set out in § 102.21. In accordance with the SEPPA, a smallpox vaccine recipient or vaccinia contact shall be presumed to have sustained a covered injury as the direct result of the administration of, or exposure to, the smallpox vaccine if the requester submits sufficient documentation demonstrating that he or she sustained an injury included on the table, with the onset of the first symptom or manifestation within the time interval specified on the table. The injury must also meet the table's definitions and requirements, set forth in § 102.21(b). In such circumstances, the Secretary will presume, solely for purposes of the program, that the smallpox vaccine recipient or vaccinia contact's injury was caused by the smallpox vaccine or exposure to vaccinia. Such a requester need not actually demonstrate that the vaccine (or the vaccinia contracted from accidental vaccinia inoculation) caused the underlying injury, only that an injury listed on the table was sustained and that it first manifested itself within the time interval listed.
In directing the Secretary to establish a table with such a presumption, Congress did not direct the Secretary to make this presumption conclusive. In the Secretary's view, it would be inconsistent with the purposes of the SEPPA to make this presumption absolutely conclusive. For this reason, based on his review of the submitted documentation and other relevant evidence, the Secretary may determine that an injury meeting the table requirements was more likely than not (
Requesters who believe they sustained an injury included on the table, but did not meet all the table requirements (
Any injury that the Secretary considers minor is not a covered injury. For example, covered injuries do not include expected skin reactions or expected minor scarring at the vaccination or inoculation site. No benefits will be paid for these reactions, as stated in § 102.20(b).
Medical benefits that may be available under the program are described in § 102.31. They include payment(s) or reimbursement for medical services and medical items that the Secretary determines are reasonable and necessary for the diagnosis or treatment of a covered injury or its direct health complications (
In making determinations about which medical services and items provided in the past were reasonable and necessary, the Secretary may consider whether those medical services and items were prescribed or recommended by a health care practitioner. In considering benefits for
In order for a requester to receive medical benefits for a health complication, the health complication must have resulted from the covered injury and not be more likely due to other factors or conditions. Examples of health complications include complications of a covered injury that occur as part of the natural course of the underlying disease, an adverse reaction to a prescribed medication or diagnostic test used in connection with a covered injury, or a complication of a surgical procedure used to treat the injury.
If a smallpox vaccine recipient or vaccinia contact dies before filing for, or being paid, benefits for the cost of medical services or items accrued during his or her lifetime as a result of a covered injury or its health complications, the deceased person's estate may be paid such medical benefits. Because such payments are for medical expenses accrued as a result of a covered injury while the injured person was alive, the cause of death does not have to be related to the covered injury for these medical benefits to be paid.
The calculation of medical benefits is described in § 102.80. There are no caps on medical benefits. However, the Secretary may limit the payment of such benefits to the amounts he considers reasonable for those services and items he considers reasonable and necessary. In addition, payment of medical benefits or reimbursement of costs for medical services and items by the program is secondary to the obligations of any third-party payor, such as the United States (except for payment of benefits under this program), State or local government entities, private insurance carriers, employers, or any other third-party payors that may have a statutory or contractual obligation to pay for or provide medical benefits.
When the Secretary has determined that the requester is eligible for medical benefits and that all of the documentation is available by which he can compute the amount, he will do the following, consistent with the calculations described in § 102.80:
(1) Determine which medical expenses that have been submitted are reasonable and necessary to diagnose or treat a covered injury or its health complications.
(2) Compute all those reasonable medical expenses, including medical services and items provided in the past, and anticipated future medical expenses.
(3) Deduct from his computation the total amount paid, or payable, by all other third-party payors. This will be the basis for the program's payment. For example: An eligible, injured individual incurred $5,000 in reasonable and necessary medical expenses. If the individual's insurance company paid $3,000, and the individual is responsible for the $2,000 balance (due to deductibles and co-payments), then the Secretary will pay a medical benefit of $2,000.
As explained elsewhere in the preamble, the Secretary may make a payment of medical benefits and later pursue such a payment from a third-party payor with an obligation to pay for or provide the medical services or items.
Lost employment income benefits that may be available under the program are set out in § 102.32. The program will provide benefits for lost employment income (secondary to other benefits that may be available to the requester) based on the number of days of work that the injured person lost as a result of the covered injury or its health complications (including diagnosis and treatment). These benefits are a percentage of the employment income lost and are based on the number of eligible work days for which such income was lost. Employment income includes the injured person's gross employment income. The lost work days do not have to be consecutive, and partial days of lost work are included in the calculation. For example, if an individual's workday is eight hours and he or she missed four hours a day for doctors' appointments on two different days, the eight hours of work missed will be considered one total day of lost work. As described in § 102.32(c), a day in which an individual used paid leave (
Under the SEPPA, the program cannot pay for the first five days of lost employment income resulting from a covered injury or its health complications, unless the injured individual lost employment income for 10 or more work days (in which case, all of the lost work days will be included in the calculation). For this reason, if an individual lost a total of four days of employment income as a result of a covered injury, he or she will not be eligible for any benefits for lost employment income.
The calculation of benefits for lost employment income is described in § 102.81. The annual cap on benefits for lost employment income for a requester is $50,000. A requester may use documents such as pay slips, earning and leave statements, and other documents concerning the injured individual's salary and benefits, to document his or her employment income. The benefit terminates once the requester reaches the age of 65. Benefits that represent future lost employment income will be adjusted to account for inflation. It is important to remember that future lost employment income will be calculated based on an individual's employment income at the time the covered injury was sustained (except for the inflation adjustment provided for in this regulation) and will not be based on an individual's anticipated future employment income. The lifetime cap for this benefit is equal to the amount of the death benefit available under the PSOB Program in the same fiscal year in which the lifetime cap is reached (currently approximately $262,100, but subject to change). However, this lifetime limitation does not apply if the Secretary determines that an individual has a covered injury considered to be a total and permanent disability under section 216(i) of the Social Security Act. For this reason, a requester deemed to have a permanent and total disability by the Secretary may be eligible to receive up to $50,000 a year until he or she reaches the age of 65.
As with medical benefits, if a smallpox vaccine recipient or vaccinia contact dies before filing for, or being paid, benefits for lost employment income incurred during his or her lifetime as a result of a covered injury or its health complications, the representative of that person's estate may file for such benefits on behalf of the estate. Because this payment is made for loss of employment income that accrued while the injured person
Once the Secretary has determined that he has all the information necessary to compute lost employment income, the calculation will be made as follows, as set out in § 102.81:
(1) If the eligible individual lost five days or fewer of employment income, then there will be no benefits for lost employment income.
(2) If the eligible individual lost six to nine days of employment income, then the Secretary will subtract five days from the number of lost work days; if the eligible individual lost 10 or more days of employment income, then every lost work day will be counted.
(3) The Secretary will multiply the injured individual's daily gross employment income (including income from self-employment) at the time of the covered injury by the number of lost work days (as computed above). This figure will be adjusted to account for inflation, as appropriate.
(4) The Secretary will compute 75% of the lost employment income if the injured individual had one or more dependents (at the time of the covered injury) or 66 2/3% of the lost employment income if there were no dependents (at the time of the covered injury). This calculation will serve as the basis for the lost employment income benefit.
(5) The amount of payment will be reduced by any benefit that the requester is entitled to receive from a third-party payor (
(6) The payments made will be subject to an annual cap of $50,000. The benefits paid in lost employment income will be subject to a lifetime cap, as discussed above, unless the Secretary determines that a requester has a covered injury considered to be a total and permanent disability under section 216(i) of the Social Security Act.
No State law workers' compensation lien may be maintained on any benefit for lost employment income paid under this program.
Certain survivors of smallpox vaccine recipients or vaccinia contacts who died as a direct result of a covered injury or its health complications may be eligible for death benefits, as set out in § 102.11 (eligible survivors and their priority to receive death benefits), § 102.33 (general description of death benefits) and § 102.82 (calculation of death benefits).
The SEPPA provides that death benefits under this program may be available under two different calculations. The “standard calculation” is a lump-sum payment to eligible survivors and is described in § 102.82(c). In general, this method is based on the death benefit available under the PSOB Program. The “alternative calculation” is only available to surviving dependents who are younger than the age of 18, as described in § 102.82(d). This method is based upon the deceased person's employment income at the time of the covered injury.
With limited exceptions, the Smallpox Vaccine Injury Compensation Program follows the requirements of the PSOB Program with respect to the categories of eligible survivors (known in the PSOB Program as beneficiaries) and the order of priority for payments of death benefits to them. The order of priority for survivors to receive death benefits under the program is subject to changes made in the future under the PSOB Program concerning eligible survivors and their priority to receive death benefits.
Currently, the categories of eligible survivors under the PSOB Program are as follows: (1) Surviving spouses; (2) surviving eligible children; (3) individuals designated by the deceased person as the beneficiaries under the deceased person's most recently executed life insurance policy; and (4) surviving parents. Such survivors, as defined under the PSOB Program, are also eligible survivors under this program. Currently, a surviving child is considered eligible under the PSOB Program if he or she is an individual who is a natural, illegitimate, adopted, or posthumous child, or stepchild, of the deceased person, and is 18 years of age or younger, or between 19 and 23 years of age and a full-time student, or is over 18 years of age and incapable of self-support because of physical or mental disability.
The SEPPA included two additional categories of survivors under this program who are not eligible survivors under the PSOB Program: (5) Legal guardians of deceased minors without surviving parents; and (6) surviving dependents who are younger than the age of 18 (some of whom may also fall within the category of surviving eligible children). As discussed below, special criteria apply to the final category of eligible survivors.
Under current practices, in the event that the deceased eligible individual is survived by a spouse and eligible children, the spouse will receive 50% of the death benefit and the children will divide the remaining 50% equally. If there are no surviving eligible children, then the spouse receives the entire benefit; if there is no surviving spouse, then the children divide the benefit in equal shares. In the event that the deceased injured individual has no surviving spouse or children, the individual designated by the deceased individual as the beneficiary under his or her most recently executed life insurance policy will receive the death benefit. If there is no life insurance policy or no surviving designated beneficiary under such a policy, the parents will divide the death benefit in equal shares. If none of these categories of survivors exists, the legal guardian of a deceased minor (who was a smallpox vaccine recipient or vaccinia contact) with no living parent will receive the death benefit, if applicable. As explained in § 102.11(b)(5), surviving dependents younger than the age of 18 will have the same priority as surviving eligible children.
Only the legal guardians of persons qualifying both as surviving eligible children under the PSOB Program and as dependents younger than the age of 18 can choose between a proportional death benefit under the standard and the alternative methods of payment. Survivors eligible under the PSOB Program's categories of survivors (
Under the “standard calculation,” the amount of the death benefit that can be paid under the program in a particular
Death benefits under the standard calculation will be reduced by the amount of lost employment income benefits that were paid under this program either to the deceased individual during his or her lifetime, or to his or her estate after death. For example, if a smallpox vaccine recipient received $40,000 from the program during his lifetime in benefits for lost employment income and later died, his survivors would be entitled to receive a total of approximately $222,100 in this fiscal year (the approximate $262,100 death benefit, minus the $40,000 in benefits for lost employment income paid to the injured person during his lifetime).
Payments made under the “alternative calculation” of death benefits are based on the deceased person's employment income at the time he or she sustained the covered injury. Under this calculation, 75% of the deceased person's employment income (determined in the same manner as employment income for purposes of lost employment income benefits) at the time he or she sustained the covered injury resulting in death will be paid annually until the youngest of the dependents reaches the age of 18. However, the maximum annual amount that may be paid to dependents (in total) under the alternative calculation is $50,000. No lifetime caps apply to death benefits under this alternative calculation.
Death benefits under this alternative calculation are available only to surviving dependents who are younger than the age of 18. In order for such surviving dependents to receive payments under the alternative calculation as opposed to the standard calculation, the legal guardian of all the dependents younger than the age of 18 must choose to receive a proportionate share of the benefits under this calculation on their behalf, as described in § 102.82(d)(1). In the event that multiple dependents have different legal guardians, each legal guardian is responsible for choosing the calculation of death benefits on behalf of the dependents of whom he or she is the legal guardian. For this reason, the legal guardian of several individuals who qualify both as surviving dependents younger than the age of 18 and as surviving eligible children cannot select a death benefit under the standard calculation for some of those dependents and a death benefit under the alternative calculation for other dependents. For those survivors who are eligible for a death benefit under both calculations, the particular circumstances (
If dependent survivors choose to receive death benefits under the alternative calculation, no death benefits will be paid to those dependents under the standard calculation. However, such payments would not preclude other eligible survivors of equal priority from receiving a proportionate death benefit under the standard calculation. For example, if a deceased smallpox recipient or vaccinia contact is survived by two dependents younger than the age of 18 from a prior marriage and by a spouse who is not the legal guardian of the dependents, the legal guardian of the two dependents could choose to receive a 50% share of the death benefit for the dependent children under the alternative calculation and the surviving spouse would still be able to receive his or her 50% share of the death benefit under the standard calculation. As another example, if a deceased smallpox recipient is survived by two minor, dependent children, one whose living parent is the deceased person's surviving spouse and another whose living parent is the deceased person's former spouse, the surviving spouse could receive a 50% share of the death benefit under the standard calculation and each of the dependent children would be eligible for a proportionate share (25%) of the death benefit available under the standard calculation or the alternative calculation, as determined by the children's respective legal guardians. Although the Program will generally apportion death benefits among multiple eligible survivors, it will not do so on behalf of dependents receiving death benefits under the alternative calculation if the dependents share the same legal guardian (because such payments would be made to the legal guardian on behalf of all of the dependents for whom he or she is the legal guardian). The legal guardian would be expected to apportion the award appropriately.
Death benefits paid to survivors under this alternative calculation are secondary to all payments made, or expected to be made in the future, by any third party payor for: (i) Compensation for the deceased person's loss of employment income on behalf of the dependents receiving death benefits under the alternative calculation, or their legal guardian(s); (ii) disability, retirement, or death benefits in relation to the deceased person on behalf of the dependents receiving death benefits under the alternative calculation, or their legal guardian(s); and (iii) life insurance benefits on behalf of the dependents receiving death benefits under the alternative calculation. Such secondary benefits are described in § 102.83(d)(3)(A). Reductions will not be made if such benefits were paid to other persons (for example, if a retirement benefit was paid to the surviving spouse who is not the dependents' legal guardian, no deduction would be made to the dependents' death benefit to account for the benefit the spouse received). In calculating such reductions, the Secretary will have discretion to apportion over multiple years any lump-sum third-party payments. The Secretary has a right to recover benefits paid under this program from third-party payors that have an obligation to pay for or provide such benefits.
As with other determinations made under this regulation, any determination concerning the calculation and payment of death benefits is not subject to any judicial review.
A Smallpox Vaccine Injury Compensation Request Form (hereinafter “Request Form”) available from the program and all the eligibility and benefits documentation comprise the Smallpox Vaccine Injury Compensation Request Package (hereinafter “Request Package”). In order for a requester to have his or her request reviewed by the program, the
This program has been designed so that requesters do not need to retain the services of lawyers to pursue benefits under this program. However, as provided in § 102.44, requesters may have a legal or personal representative submit the Request Form and/or Request Package on their behalf. A legally competent requester must certify on the Request Form that he or she has authorized the representative to submit the Request Package on his or her behalf. Requesters who are minors or legally incompetent adults will require the assistance of a representative (who does not need to be a lawyer). Representatives of requesters who are minors or adults determined by a court to be legally incompetent are required to submit specific documentation, in addition to the documentation generally required of requesters, which is described in § 102.63. The representative of a requester is required to submit the documents that would ordinarily be required of the requester. For example, if this regulation requires a requester to submit his or her medical records, the requester's representative would be required to submit the same records on behalf of the requester.
The Secretary will direct all correspondence to, and communicate exclusively with, a requester's representative unless the Secretary is advised that the representation has stopped. As explained above, although legal representation is permitted, it is not needed for filing for program benefits. As described in § 102.44(d), the Secretary will not be responsible for the payment of any fees for the services of legal or personal representatives or for any associated costs.
Smallpox vaccine recipients who have a covered injury have one year from the date of a smallpox vaccination administered during the effective period of the Declaration (between January 24, 2003, and January 23, 2004, unless the Secretary extends the time period) to submit a Request Form. This deadline applies even if the requester's injury was the direct result of a covered countermeasure other than the smallpox vaccine (
In the event that the Secretary amends the Table of Injuries, requesters have an extended filing deadline, based on the effective date of the table amendment, which will be published in the
To speed the review of eligibility, requesters should file all documentation required for eligibility determinations by the filing deadline. However, a requester will meet the filing deadline requirement by submitting only the completed and signed Request Form by that deadline, with documentation to follow. Request Forms not filed within the governing filing deadline will not be processed, and the requester will not be considered for any program benefits.
The filing of amendments to previously filed Request Packages is discussed in § 102.46. As explained in that section, if a smallpox vaccine recipient or vaccinia contact filed a Request Package, but later dies, his or her survivors or the representative of his or her estate may amend the Request Package. However, a requester filing such an amended request will only be entitled to benefits under the program if the original Request Form (filed by the smallpox vaccine recipient, vaccinia contact, or representative) was filed within the applicable filing deadline. If such an amendment is filed, all of the documentation submitted with the original Request Package will be considered part of the amended Request Package and the survivor or estate representative need not resubmit such documentation. Requesters are responsible for notifying the program of any changes in circumstances that may have an impact on the Secretary's eligibility and benefits determinations.
Requesters or their representatives must submit appropriate documentation to allow the Secretary to determine if the requesters are eligible for program benefits. The documentation required will vary somewhat depending on whether the requester is filing as a smallpox vaccine recipient, vaccinia contact, survivor, or representative of an estate.
Because all Request Packages filed with the program, including those filed by survivors or representatives of the estates of deceased persons, must relate back to a smallpox vaccine recipient or vaccinia contact who sustained a covered injury, all requesters must submit medical records sufficient to demonstrate to the Secretary that a covered injury was sustained by a smallpox vaccine recipient or a vaccinia contact. Section 102.50(a) describes the medical records that are generally required in order for a requester to establish that a covered injury was sustained. The Secretary will use the records submitted, as well as any other available evidence, to evaluate either whether an injury set out in the table and meeting the table's requirements was sustained or whether an injury was sustained as the direct result of
Although the medical records described in § 102.50(a) are those that will generally be required for all requesters, requesters may also submit additional documentation, as provided for under § 102.50(b). As described in § 102.50(d), the Secretary may determine that particular records described in § 102.50(a) are not necessary for particular requesters (for example, if certain medical records provide the exact same information as other records that are submitted) or that additional records may be required in order to make a covered injury determination (for example, in cases in which a preexisting condition may be the cause of the current injury).
If certain medical records are unavailable to a requester, the requester must submit a statement describing the reasons for the records' unavailability and the reasonable efforts the requester has made to obtain them. The Secretary may, at his discretion, accept such a statement from the requester instead of the required medical records, if the circumstances so warrant, as set forth in § 102.50(c).
If a smallpox vaccine recipient or vaccinia contact died and his or her survivors seek a death benefit under the program, the Secretary will need to review the medical records to determine whether the death was the direct result of a covered injury. As explained in § 102.53(d), the medical records reviewed for this purpose may be the same as those submitted for the covered injury determination.
In making covered injury determinations, the Secretary may consider all of the scientific evidence available (
As described above, a smallpox vaccine recipient must submit medical records that are sufficient to show that he or she sustained a covered injury, including medical records produced after the vaccination from all hospitals, clinics, or providers. In order to show eligibility, such a requester must also submit a completed and signed Request Form and the documentation described in § 102.51. As noted in § 102.51(b), a requester may submit a certification form, available from the program, completed by the entity (
A requester who is a vaccinia contact must submit a completed and signed Request Form and the documentation described in § 102.52. Among the required documentation is documentation identifying the individual who was the source of the accidental vaccinia inoculation. However, if such documentation is unavailable, for example, if the source of the exposure to vaccinia is unknown, the Secretary has the discretion to accept other documentation providing evidence of the source of such exposure. For example, the Secretary may accept an affidavit signed by the requester explaining the circumstances under which he or she contracted the vaccinia. If this information is supportive of the vaccinia contact contracting vaccinia from a smallpox vaccine recipient (as defined in this regulation, except that the recipient need not sustain a covered injury) or from the contact of such a person, the Secretary may accept such an affidavit in place of the required documentation.
A requester who is a survivor of a deceased smallpox vaccine recipient or vaccinia contact must submit a completed and signed Request Form, the documentation discussed above that the deceased person would have had to submit if he or she were alive at the time of filing, and the documentation required of survivor requesters. These requirements are described in § 102.53.
A requester who is the representative of the estate of a deceased smallpox vaccine recipient or vaccinia contact, seeking benefits under the program on behalf of the estate, must submit a completed and signed Request Form, the documentation discussed above that the deceased person would have had to submit if he or she were alive at the time of filing, and the documentation required of requesters who are estate representatives. These requirements are described in § 102.54.
In addition to the documentation requesters must submit for the Secretary to make eligibility determinations (including the determination that a covered injury was sustained), requesters must submit documentation to enable the program to calculate the type and amount of benefits available. Because the benefits available under the program are generally secondary to benefits received from third-party payors, it may be possible that certain requesters who are deemed eligible will not receive benefits from the program. Sections 102.60-102.63 describe the documentation that is required for requesters seeking particular types of benefits.
Although the program will accept such documentation at any time after a Request Form is filed, a requester need not submit any of the documentation pertaining to benefits until the Secretary has informed the requester that he or she is eligible under the program. The submission of benefits documentation is described in § 102.43(b) and is designed to ease the documentary burden on requesters who do not know whether or not they will be deemed eligible. Requesters need not submit benefits documentation until they have been notified by the Secretary that they are eligible.
In order to calculate the amount of each type of benefit available, the program requires requesters to provide documentation of every third-party payor that may have paid for or provided the benefits requested, or that may have an obligation to do so. The information required concerning such third-party payors with respect to each type of benefit available under the program is described in § 102.60-§ 102.62.
Requesters seeking medical benefits must also submit documentation concerning the amount paid or expected to be paid by such third-party payors for the medical services or items for which payment is being sought under the program. Third-party payors of medical benefits include, but are not limited to, medical insurance, Medicaid, Medicare, and any other source of medical recompense. An example of the documentation necessary to satisfy this requirement is an Explanation of
Third-party payors of benefits for lost employment income include, but are not limited to, the requester's employer, disability insurance, and workers' compensation programs. In order to satisfy his or her obligations under § 102.61, a requester may need to submit documentation including his or her earnings and leave statements, information concerning the number of hours in the requester's standard work day, as well as documentation concerning any lost work benefits programs or payments.
Requesters seeking death benefits will have to submit different documentation concerning third-party payors depending on whether they are seeking death benefits under the standard calculation described in § 102.82(c) or are choosing a death benefit under the alternative calculation described in § 102.82(d). For example, survivors seeking a death benefit under the standard calculation must submit documentation concerning PSOB Program death and disability benefits. The legal guardian of survivors seeking a death benefit under the alternative calculation must submit documentation concerning a broader group of existing or potential third-party payors (described fully in the death benefits calculation section of this preamble and set forth in § 102.83(d)(3)(A)). Requesters seeking death benefits must submit other documentation described in § 102.62.
Before payments will be made, the representatives of requesters who are minors or legally incompetent adults must submit additional documentation described in § 102.63. Because some of this documentation may be time-consuming to obtain (
When the Secretary receives a completed and signed Request Form or Request Package postmarked in the appropriate time frame, he will conduct two separate reviews, as described in § 102.70. First, he will determine whether the requester is eligible. Second, the Secretary will determine the type and amount of benefits that may be paid (if any).
If the Request Package does not include sufficient documentation to determine eligibility, the Secretary will send written notice to the requester (or his or her representative) identifying the documentation that is needed, as provided for in § 102.71. The requester will be given 60 days to submit the required documentation. If, after reasonable efforts to obtain the documents, the documentation remains unavailable, the requester must submit a letter explaining the circumstances to the Secretary. The Secretary also has the discretion to accept a letter meeting the requirements set out in § 102.71 as a substitute for the unavailable documentation. Once the Secretary has sufficient documentation to make an eligibility determination, he will make that decision in a timely manner.
If the Secretary determines that a requester is not eligible for benefits under the program, he will inform the requester (or his or her representative) of the disapproval in writing. As described in § 102.72(a), the Secretary will provide information as to the options available to the requester, including the requester's right to seek reconsideration of the eligibility decision.
If the Secretary determines that a requester meets the eligibility requirements, he will notify the requester in writing of this decision, at which point the Secretary will review the Request Package in order to calculate the type and amount of the benefits. If the Request Package does not have sufficient documentation for the Secretary to calculate the amount of the benefits, the Secretary will notify the requester in writing of the documentation he requires to complete the calculation. As with the eligibility documentation, the requester will be given 60 days to submit the required documentation or provide a letter setting forth the circumstances that make the records unavailable. Again, the Secretary may accept a letter meeting the requirements set forth in § 102.71 as a substitute for the unavailable documentation. Once the Secretary has sufficient documentation to calculate a requester's benefits, the Secretary will complete this calculation in a timely manner.
As set out in § 102.73, once the Secretary has calculated the amount of the benefits and determined that payment is to be made, he will inform the requester of the approval in writing and then initiate payment. Under § 102.74, if the Secretary disapproves a request, which the Secretary may do at any time, he will so notify the requester (or his or her representative) in writing and provide information as to the options available to the requester, including the requester's right to seek reconsideration of the Secretary's decision.
The Secretary's options in paying all benefits under the program are described in § 102.83. If the Secretary determines that there is a reasonable likelihood that payments of medical benefits, benefits for lost employment income, or death benefits paid under the alternative calculation (described in § 102.82(d)) will be required for a period in excess of a year from the date the Secretary determines that the requester is eligible for such benefits, the Secretary may pay such benefits through a lump-sum payment, annuity or medical insurance policy, or appropriate structured settlement agreement, as long as the payment, annuity, policy, or agreement is actuarially determined to have a value equal to the present value of the projected total amount of such benefits that the requester is eligible to receive.
As described in § 102.83(b), lump sum payments will generally be made through electronic funds transfers to requesters' accounts. If a requester is a minor, the payment will be transferred to the account of the minor's legal guardian (generally, the minor's parent). The legal guardians of minor requesters under this program will be required to use the payments for the benefit of the minor. Such legal guardians are subject to applicable State law requirements concerning payments made on behalf of minors (
As provided in § 102.83(c), the Secretary may choose to make interim payments of benefits under the program (in other words, issue a payment for a certain type or portion of program benefit prior to making the final benefits payment) in order to get certain benefits to a requester more quickly than would otherwise be possible. For example, the Secretary may pay medical benefits for past services or items to an eligible requester whose covered injury has resulted in substantial medical bills before making the final determination concerning the payment of future medical benefits. In certain cases, the
The Secretary has asked the Internal Revenue Service (IRS) to provide prompt guidance on the tax consequences of receiving benefits under SEPPA. The IRS intends to publish guidance before the end of the year that will give requesters who receive benefits under the program the information they would need to meet any Federal tax responsibilities. The IRS has committed to working with the Secretary to ensure that requesters have ready access to the tax information and assistance with any additional questions they may have.
As described elsewhere in this preamble, the payment of benefits under this program is generally secondary to benefits available from other third-party payors. The category of third-party payors that have primary responsibility to pay for or provide such benefits is different for each type of benefit available under this program. Such third-party payors are discussed in the sections of the preamble concerning the different types of benefits. As described in § 102.84, after the Secretary pays benefits under this program, he will be subrogated to the rights of the requester, meaning that the Secretary may assert a claim against any third-party payor with a legal or contractual obligation to pay for, or provide, such benefits. The Secretary may recover from such a third-party payor the amount of benefits the third-party payor has or had an obligation to pay for or provide. For example, if the Secretary pays a requester $10,000 in benefits for lost employment income under this program and a State workers' compensation program later determines that it is obliged to pay the requester $5,000 in workers' compensation benefits, the Secretary may pursue a claim against the State for the $5,000 (because the Secretary, as the secondary payor, would only be obligated to pay the requester $5,000 in benefits for lost employment income). Any benefits paid under this program are not subject to any lien by any primary third-party payor.
Every individual who has filed a Request Package and has received a determination by the Secretary either denying eligibility for benefits or denying a category or amount of benefits requested, has a right to seek reconsideration of the Secretary's determination(s). Although such initial determinations are characterized as Secretarial determinations, this decision-making authority will be delegated to the Smallpox Vaccine Injury Compensation Program Office. The requester or his or her representative must send a letter seeking reconsideration to the Associate Administrator, Special Programs Bureau, Health Resources and Services Administration, at the address provided in § 102.90(b). The letter must be received by the Department within 60 calendar days of the date of the Department's determination letter. The letter should state the reasons why the Secretary should reconsider his decision. No new documentation can be included with this letter.
The Associate Administrator, Special Programs Bureau, will convene a panel to review all cases seeking reconsideration. The panel will consist of qualified individuals who are independent of the Smallpox Vaccine Injury Compensation Program Office. The panel will review the Request Package that was before the Secretary at the time of the determination (and will not consider any new documentation submitted by the requester).
After reviewing the case, the panel will make a recommendation to the Associate Administrator, Special Programs Bureau, who will then make a final determination as to whether or not the requester is eligible for benefits or as to the type and/or amount of benefits that may be paid. The Associate Administrator will inform the requester or his or her representative in writing of the determination(s) and of the reasons. This decision will be considered the Secretary's final action on the issue for which reconsideration was sought. Requesters may not seek review of such a decision.
If the Associate Administrator's final decision is that a requester who was determined to be ineligible for benefits is, in fact, eligible, then the Secretary will make a determination as to the type and amount of benefits to be paid. The requester then has a right to seek reconsideration of the Secretary's determination on that issue.
As described in § 102.91, the SEPPA authorizes the Secretary to review at any time, and at his own motion or on application, any determination made concerning eligibility, entitlement to benefits, and the calculation and payment of benefits under the Program and authorizes the Secretary to affirm, vacate, or modify such determination in any manner the Secretary deems appropriate.
As explained in § 102.92, once the Secretary has made a final decision as to eligibility or type or amount of benefits and the requester has exercised his or her right to reconsideration, section 262(f)(2) of the Public Health Service Act does not allow any further review of that decision by any court or administrative body (unless the President specifically directs further administrative review). Given this broad statutory prohibition against further review, no determination made under this part (including, but not limited to, eligibility determinations, benefits calculations, payment decisions, and reconsideration decisions) will be subject to any review by Federal or State courts.
Through the enactment by the SEPPA of part C, Title II of the Public Health Service Act (PHS Act), the Secretary was authorized to establish and administer the Smallpox Vaccine Injury Compensation Program. Congress authorized the Secretary to issue regulations implementing the SEPPA as the Secretary deems reasonable and necessary, and provided that the initial implementing regulations could be published by interim final rule. In accordance with that statutory authority, the Secretary is herein establishing the procedures and requirements to govern the program.
In addition, the Secretary has determined, under 5 U.S.C. 553(b), that it is contrary to the public interest to follow proposed rulemaking procedures (
For the same reasons, the Secretary has determined that there is good cause to waive a delay in the rule's effective date. Nonetheless, as noted above, comments on the procedures and requirements set forth in this interim final rule will be accepted at the above listed address for a period of 60 days following the publication of the rule in the
Executive Order 12866 requires that all regulations reflect consideration of alternatives, of costs, of benefits, of incentives, of equity, and of available information. Regulations must meet certain standards, such as avoiding an unnecessary burden. Regulations that are “significant” because of cost, adverse effects on the economy, inconsistency with other agency actions, effects on the budget, or novel legal or policy issues, require special analysis.
The Secretary has determined that minimal resources are required to implement the provisions included in this regulation. Therefore, in accordance with the RFA, and the Small Business Regulatory Enforcement Fairness Act of 1996, which amended the RFA, the Secretary certifies that this rule will not have a significant impact on a substantial number of small entities. Specifically, both the benefits and the burdens associated with this interim final rule will go almost entirely to individuals who are filing as requesters with the program. Any burdens on small entities associated with the implementation of this final rule (
The Secretary has also determined that this proposed rule does not meet the criteria for a major rule as defined by Executive Order 12866 and would have no major effect on the economy or Federal expenditures. We have determined that the proposed rule is not a “major rule” within the meaning of the statute providing for Congressional Review of Agency Rulemaking, 5 U.S.C. 801.
Nonetheless, the Secretary believes that a discussion of the factors that led to the creation of the smallpox vaccination plan and of the Smallpox Vaccine Injury Compensation Program, as well as the likely impact of both programs, is warranted. As described earlier in this preamble, prior to its eradication, smallpox (variola) was a serious illness that manifested either as outbreaks of variola major with death rates of greater than 20% or variola minor with death rates approaching 1%. Those who survived were frequently left with significant disabilities, such as blindness. Smallpox vaccine was an essential tool for the successful global eradication of smallpox, announced by the World Health Organization in 1980. Despite such eradication, concern exists that terrorists may have access to the smallpox virus.
On December 13, 2002, the President announced a plan to protect the population of the United States against the threat of a possible smallpox attack. This plan was based on heightened concerns, in the wake of the attacks of September and October 2001, that terrorists may have access to the smallpox virus and may attempt to use it against the population of the United States and government facilities abroad. Under this plan, which the Secretary is actively working to implement, State and local governments have formed volunteer smallpox emergency response teams that will be prepared to provide critical services to the population of the United States in the event of a smallpox virus attack.
In furtherance of the President's plan, and as described earlier, the Secretary issued a Declaration Regarding Administration of Smallpox Countermeasures on January 24, 2003. In this Declaration, the Secretary stated that “a potential bioterrorist incident makes it advisable to administer, on a voluntary basis, covered countermeasures specified * * * for prevention or treatment of smallpox [(virus infection)] or control or treatment of adverse events related to smallpox vaccination, to [specified] categories of individuals * * *.” The specific “covered countermeasures” described in the Declaration are smallpox vaccines, cidofovir and derivatives thereof, and Vaccinia Immune Globulin. The categories of persons to whom the Secretary recommended the administration of such covered countermeasures, on a voluntary basis, included certain health care workers, members of smallpox emergency response plans identified by State or local government entities or the Department of Health and Human Services, certain public safety personnel, and certain personnel associated with specific Federal facilities abroad. The Secretary recommended that such persons receive the smallpox vaccine to ensure that essential personnel would be able to mobilize immediately and provide critical services to the population of the United States in the event of a smallpox virus attack.
As already stated, the SEPPA was enacted on April 30, 2003. This statute authorized the Secretary to establish the Smallpox Vaccine Injury Compensation Program (the program). This program has been appropriated $42 million for the administration of the program and the payment of benefits under the program. The purpose of the program is to provide benefits to eligible members of smallpox emergency response plans who sustain a covered injury as the result of receiving the smallpox vaccine (or other smallpox covered countermeasures). In addition, certain persons who come in contact with a vaccinated member of a smallpox
The availability of benefits to injured persons (and certain survivors, in the case of death) under this program was considered an important step in the implementation of the Administration's smallpox vaccination plan and in the nation's preparedness to face potential terrorist events involving the smallpox virus. Prior to the enactment of the SEPPA, and the establishment of this program, eligible smallpox vaccine recipients and vaccinia contacts were only entitled to benefits for medical care or for lost employment income related to covered injuries that were otherwise available from other third-party payors (
The Administration has worked to remove other disincentives to smallpox vaccination through approved smallpox emergency response plans (
Because it is impossible to quantify the risk of potential terrorist incidents involving the smallpox virus, it is impossible to assess the contribution that a group of first responders vaccinated with the smallpox vaccine through smallpox emergency response plans will provide to the population of the United States. In making benefits available to eligible individuals, the Administration is removing a disincentive that may be a barrier against first responders and others receiving the smallpox vaccination as participants in approved smallpox emergency response plans. In removing this disincentive, the program is likely to increase the nation's preparedness in the face of uncertainty. In addition, the establishment of the program ensures that individuals who sustain covered injuries as the direct result of such vaccinations (or of other smallpox covered countermeasures) or of accidental vaccinia inoculation will be afforded appropriate benefits, including payment for related medical services and items.
As of September 2003, approximately 38,400 vaccinations have been administered to civilians under approved smallpox emergency response plans. Of those, approximately 800 have reported medical injuries to the CDC through the Vaccine Adverse Events Reporting System (VAERS). Such reports have included three fatalities and 92 serious injuries. Some of those who have reported injuries may not be eligible for the Smallpox Vaccine Injury Compensation Program, either because the injury is not covered by the Act (
The $42 million appropriated to the Program, in addition to covering administrative costs, was projected by Congress to cover the provision of benefits to eligible requesters. This figure was reached after consideration of the projected number of covered injuries and related deaths, projected medical costs related to the covered injuries, and the projected number of lost work days resulting from such covered injuries. The fact that program benefits are generally only available if such benefits are not available from other third-party payors (
It should be noted that the smallpox vaccination program that was being considered by Congress and the Administration when the $42 million appropriation was made contemplated that up to 2-3 million individuals could be vaccinated through approved smallpox emergency response plans if individuals representing all of the occupations described in the SEPPA (including health care workers, firefighters, and public safety personnel) fully participated in the smallpox vaccination program. The number of individuals who have received the smallpox vaccine under approved smallpox emergency response plans to date is substantially smaller than the number of such vaccinees that were considered possible if the smallpox vaccination program reached full participation. As of September 2003, approximately 38,400 vaccinations were administered under approved smallpox emergency response plans. For this reason, the number of individuals eligible to receive benefits under the program may in fact be a small percentage of the numbers originally considered. Given that the number of individuals who have volunteered to receive the smallpox vaccine under approved smallpox emergency response plans is significantly smaller than the total number of potential vaccinees likely considered in devising the $42 million appropriation, the program expects the adverse events associated with the smallpox vaccination program and the amount of benefits paid by the program (which will depend, on large part, upon the amount of medical services and items, as well as lost employment income, relating to covered injuries) to be similarly smaller than what was considered in calculating the $42 million appropriation. Of course, this expectation may change over time depending upon many factors, including the number of volunteers who receive the smallpox vaccine under approved smallpox emergency response plans in the future, as well as new scientific findings concerning the existence of causal relationships between particular medical conditions and the smallpox vaccine (as well as other covered countermeasures and vaccinia contracted through accidental exposure).
In establishing the procedures described in this regulation, the Secretary has made operational decisions that will assist eligible requesters to receive benefits in a prompt and fair manner. For example, requesters are not required to obtain the services of an attorney in order to obtain benefits under the program, but are permitted to appoint a representative to assist them in filing a Request Package if this will be helpful to the requester.
In addition, the Secretary has made an effort to be flexible in circumstances in which a requester is unable to submit documentation that would otherwise be required in order to establish eligibility and entitlement to benefits. For
In accordance with the PRA, we have submitted and obtained OMB approval on this data collection and reporting of this information. An emergency review was needed before the expiration of the normal time limits under OMB's regulations at 5 CFR part 1320, to ensure the timely availability of data as necessary to ensure the provision of benefits to eligible petitioners. Delaying the data collection would delay implementation of the statutory purpose of providing benefits to eligible individuals who sustained covered injuries, particularly because the statutory filing deadlines for certain eligible requesters may occur as early as January 2004. Implementing this regulation and providing benefits as soon as possible will ensure that the intent of SEPPA in making these benefits to eligible individuals will be implemented, to the extent possible. OMB has approved this collection, with a 180-day approval period. During this period, we will publish a separate
According to CDC's Vaccine Adverse Event Reporting System (VAERS), there are reports of three fatalities and 92 serious injuries (out of approximately 800 total reported injuries) based on the administration of approximately 38,400 smallpox vaccinations to volunteers within the civilian sector (as of September 2003). The program recognizes the difficulty inherent in predicting the number of individuals who will file for benefits under approved smallpox emergency response plans. Nonetheless, with the anticipation of additional individuals receiving the smallpox vaccine, plus a number of potential contact cases, the program predicts that there may be up to 1,250 requesters. It is important to note that a large number of such requesters filing Request Forms with the program may not be eligible for payments under the program for a variety of reasons (
The annual burden estimate includes the time required to review and complete the Request Form as well as the time to obtain and provide further documentation necessary for eligibility and benefits determinations. Comments on this information collection activity should be sent to Lauren Wittenberg, OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, 725 17th Street, NW., Washington, DC 20053; FAX: (202) 395-6974.
Benefits, Biologics, Compensation, Immunization, Public health, Smallpox, Vaccinia.
42 U.S.C. 216, 42 U.S.C. 239-239h.
This part implements Section 2 of the Smallpox Emergency Personnel Protection Act of 2003 (the Act). The Act directs the Secretary of Health and Human Services to establish procedures for providing benefits to certain individuals who sustained a covered injury as the direct result of the administration of the smallpox vaccine or other covered countermeasure, and to certain individuals who sustained a covered injury as the direct result of accidental vaccinia inoculation through contact with certain persons vaccinated with the smallpox vaccine or with individuals accidentally inoculated by them. Also, if the Secretary determines that an individual died as a result of a covered injury, the Act provides for certain survivors of that individual to receive death benefits.
(a) The Act authorizes three forms of benefits to requesters deemed eligible by the Secretary:
(1) Payment or reimbursement for reasonable and necessary medical services and items to diagnose or treat a covered injury or its health complications, as described in § 102.31.
(2) Lost employment income incurred as a result of a covered injury, as described in § 102.32.
(3) Death payments to survivors if the Secretary determines that the death of the smallpox vaccine recipient or vaccinia contact was the direct result of
(b) The benefits paid under the Program, with the exception of death benefits paid under § 102.82(c), are secondary to any obligation of any third-party payor to pay for such benefits. Death benefits paid under § 102.82(c) are secondary to death and disability benefits under the PSOB Program. The benefits paid under the Program usually will only be paid after the requester has pursued all other available coverage from all third-party payors with an obligation to pay for or provide such benefits (
This section defines certain words and phrases found throughout this part. Words and phrases that are used only in limited situations are defined in specific sections of this part.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(1) An injury meeting the requirements of the Table, which is presumed to be the direct result of the administration of a smallpox vaccine or accidental vaccinia inoculation; or
(2) More likely than not, the direct result of:
(A) The administration of a covered countermeasure (including the smallpox vaccine) during the effective period of the Declaration, in the case of a smallpox vaccine recipient; or
(B) Vaccinia contracted through accidental vaccinia inoculation (and not the result of receiving a smallpox vaccine) during the effective period of the Declaration (or within 30 days after the end of such period), in the case of a vaccinia contact.
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(x)
(1) Who has been a health care worker, law enforcement officer, firefighter, security personnel, emergency medical personnel, other public safety personnel, or support personnel for such occupational specialties who has volunteered and been selected to be a member of a smallpox emergency response plan prior to the time at which the Secretary publicly announces that an active case of smallpox has been identified within or outside of the United States;
(2) Who is or will be functioning in a role identified in a smallpox emergency response plan;
(3) To whom a smallpox vaccine is administered pursuant to a smallpox emergency response plan during the effective period of the Declaration; and
(4) Who sustained a covered injury.
(y)
(z)
(aa)
(bb)
(1) Contracted vaccinia during the effective period of the Declaration (or within 30 days after the end of such period);
(2) Prior to contracting vaccinia, was accidentally inoculated by a person:
(A) Meeting the criteria set forth in § 102.3(x)(1)-(3) (a person meeting the definition of a smallpox vaccine recipient, except for the requirement that the person sustained a covered injury); or
(B) Who was accidentally inoculated by a person meeting the criteria set forth in § 102.3(x)(1)-(3) (a person meeting the definition of a smallpox vaccine recipient, except for the requirement that the person sustained a covered injury); and
(3) Sustained a covered injury.
(a) The following requesters may, as determined by the Secretary, be eligible to receive benefits from this Program:
(1) Smallpox vaccine recipients, as described in § 102.3(x);
(2) Vaccinia contacts, as described in § 102.3(bb); or
(3) Survivors, as described in § 102.3(z) and § 102.11.
(4) Representatives of the estates of deceased smallpox vaccine recipients or vaccinia contacts (
(b) If a smallpox vaccine recipient or vaccinia contact dies, his or her survivor(s) or the representative of his or her estate may file a new Request Package (or Request Package(s)) or amend a previously filed Request Package. A new Request Package may be filed whether or not a Request Package was previously submitted by or on behalf of the deceased person, but must be filed within the filing deadlines described in § 102.42. Amendments to previously filed Request Packages and the filing deadlines for such amendments are described in § 102.46.
(c) The benefits available to different categories of requesters are described in § 102.30.
(a)
(b)
(1) The Act uses the same categories of survivors and order of priority for benefits as established and defined by the PSOB Program, except as provided in paragraphs (b)(3), (b)(4), and (b)(5) of this section.
(2) The PSOB Program's categories of survivors (known in the PSOB Program as beneficiaries) and order of priority for receipt of death benefits are detailed under subpart 1 of part L of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796
(3) In the PSOB Program, the person who is survived must satisfy the eligibility requirements for a deceased public safety officer, whereas the person who is survived under this Program must be a deceased smallpox vaccine recipient or vaccinia contact who would otherwise have been eligible under this part.
(4) Unlike the PSOB Program, if there are no survivors eligible to receive death benefits under the PSOB Program (as set forth in paragraph (b)(2) of this section), the legal guardian of a deceased minor who was a smallpox vaccine recipient or vaccinia contact may be eligible as a survivor under this Program. Such legal guardianship must be determined by a court of competent jurisdiction under applicable State law.
(5) A surviving dependent younger than the age of 18 whose legal guardian opts to receive a death benefit under the alternative calculation on the dependent's behalf will have the same priority as surviving eligible children under the PSOB Program (consistent with paragraph (b)(2) of this section) even if the dependent is not the surviving eligible child of the deceased person for purposes of the PSOB Program. However, such a dependent may only be eligible to receive benefits under the alternative death benefits calculation, described in § 102.82(d), and is not eligible to receive death benefits under the standard calculation described in § 102.82(c). Because death benefits paid under the alternative calculation will be paid to the dependents' legal guardian(s) on behalf of all such dependents, the Secretary will not divide or apportion such benefits among the dependents.
(6) Any change in the order of priority of survivors or of the eligible category of survivors under the PSOB Program shall apply to requesters seeking death benefits under this Program on the effective date of the change, even prior to any corresponding amendment to this part. Such changes will apply to Request Packages pending with the Program on the effective date of the change, as well as to requests filed after that date.
(a)
(b)
(c)
(d)
(1) In the case of a smallpox vaccine recipient, he or she sustained an injury as the direct result of the administration of a covered countermeasure (including the smallpox vaccine) during the effective period of the Declaration; or
(2) In the case of a vaccinia contact, he or she sustained an injury as the direct result of vaccinia contracted through accidental vaccinia inoculation from a person described in § 102.3(bb)(2) (a person meeting the definition of a smallpox vaccine recipient, except that the person need not sustain a covered injury, or the contact of such a person), and not as the result of receiving a smallpox vaccine. Such vaccinia must have been contracted during the effective period of the Declaration (or within 30 days after the end of such period). The Secretary will consider an injury that resulted from the administration of a covered countermeasure (other than the smallpox vaccine) to be the direct result of vaccinia contracted through accidental vaccinia inoculation if the covered countermeasure was administered as a result of such vaccinia.
3. In part 102, reserve §§ 102.22-102.29.
4. In part 102, add sections 102.30-102.91 to read as follows:
(a)
A requester who is an eligible smallpox vaccine recipient or vaccinia contact may be entitled to receive either medical benefits or benefits for lost employment income, or both.
(b)
(c)
(a) Smallpox vaccine recipients and vaccinia contacts may receive payments or reimbursements for medical services and items that the Secretary determines to be reasonable and necessary to diagnose or treat a covered injury or a health complication of a covered injury (
(b) To receive medical benefits for the health complications of a covered injury, a requester must demonstrate that the complications are the direct result of the covered injury. Examples of health complications include, but are not limited to, complications of a covered injury that occur as part of the natural course of the underlying disease, an adverse reaction to a prescribed medication or diagnostic test used in connection with a covered injury, or a complication of a surgical procedure used to treat a covered injury.
(c) The calculation of medical benefits available under this Program is described in § 102.80. Although there are no caps on medical benefits available under this Program, the Secretary may limit payments to the amount he deems reasonable for those services and items he considers reasonable and necessary. All payment or reimbursement for medical services and items is secondary to any obligation of any third-party payor to pay for or provide such services or items to the requester. As provided in § 102.84, the Secretary retains the right to recover medical benefits paid to requesters by third-party payors.
(d) The Secretary may make payments or reimbursements of medical benefits to the estate of a deceased smallpox vaccine recipient or vaccinia contact as long as such benefits were accrued during the deceased person's lifetime as the result of a covered injury or its health complications and were not paid during the deceased person's lifetime.
(a) Requesters who are smallpox vaccine recipients or vaccinia contacts
(b) The method and amount of benefits for lost employment income are described in § 102.81. Benefits for lost employment income will be adjusted if there are fewer than 10 days of lost employment income. Benefits provided for lost employment income may also be adjusted for annual and lifetime caps. Payment of benefits for lost employment income is secondary to any obligation of any third-party payor to pay for lost employment income or to provide disability or retirement benefits to the requester. As provided in § 102.84, the Secretary retains the right to recover benefits for lost employment income paid to requesters from third-party payors.
(c) The Secretary is not requiring an individual to use paid leave (
(d) The Secretary may pay benefits for lost employment income to the estate of a deceased smallpox vaccine recipient or vaccinia contact as long as such benefits were accrued during the deceased person's lifetime as the result of a covered injury or its health complications and were not paid to the deceased person during his or her lifetime.
(a) Eligible survivors may be able to receive a death benefit under this Program if the Secretary determines that an otherwise eligible deceased smallpox vaccine recipient or vaccinia contact sustained a covered injury and died as a direct result of the injury. Annual and lifetime caps may apply to the death benefits provided. The method and amount of death benefits are described in § 102.82. As provided in § 102.84, the Secretary retains the right to recover death benefits paid to requesters from third-party payors. Death benefits may be paid under two different calculations.
(b) The standard calculation, described in § 102.82(c), is based upon the death benefit available under the PSOB Program and is available to all eligible survivors (except for surviving dependents younger than the age of 18 who are not also surviving eligible children). In the event that death benefits were paid under the PSOB Program with respect to the deceased person, no death benefits may be paid under the standard calculation. In addition, death benefits under this standard calculation are secondary to disability benefits under the PSOB Program. Any death benefit paid under the standard calculation will be reduced by the total amount of benefits for lost employment income paid to the smallpox vaccine recipient or vaccinia contact during his or her lifetime and to his or her estate after death.
(c) The alternative calculation, described in § 102.82(c), is calculated based on the person's employment income at the time of the covered injury. This calculation is only available to surviving dependents who are younger than the age of 18. The legal guardian(s) of such surviving dependents must select the death benefit as calculated under this alternative calculation before it will be paid. The payment of a death benefit as calculated under this alternative calculation is secondary to other benefits received (compensation for loss of employment income, death benefits (including PSOB Program death benefits), disability benefits, or retirement benefits on behalf of the dependent(s) or his or her legal guardian or life insurance benefits on behalf of the dependent(s)).
Interested parties may obtain copies of all necessary forms and instructions by sending a letter through the U.S. Postal Service, commercial carrier, or private courier service, by telephone, or by downloading them from the Program's website.
(a) If using the U.S. Postal Service, interested parties should send letters asking for forms and instructions to the Smallpox Vaccine Injury Compensation Program Office, Special Programs Bureau, Health Resources and Services Administration, Parklawn Building, Room 16C-17, 5600 Fishers Lane, Rockville, MD 20857.
(b) If using a commercial carrier or private courier service, interested parties should send letters asking for forms and instructions to the Smallpox Vaccine Injury Compensation Program Office, Special Programs Bureau, Health Resources and Services Administration, 4350 East-West Highway, 10th Floor, Bethesda, Maryland 20814.
(c) For forms and instructions, interested parties can call (888) 496-0338. This is a toll-free number.
(d) Interested parties can download forms and instructions from the Internet at
A Request Package comprises all the forms and documentation that are submitted to enable the Secretary to determine eligibility and calculate payments. Request Packages may be filed through the U.S. Postal Service, commercial carrier, or private courier service. The Smallpox Vaccine Injury Compensation Program Office will not accept Request Packages electronically or by hand-delivery.
(a) If using the U.S. Postal Service, requesters (or their representatives) should send all forms and documentation to the Smallpox Vaccine Injury Compensation Program Office, Special Programs Bureau, Health Resources and Services Administration, Parklawn Building, Room 16C-17, 5600 Fishers Lane, Rockville, MD 20857.
(b) If using a commercial carrier or private courier service, requesters (or their representatives) should send all forms and documentation to the Smallpox Vaccine Injury Compensation Program Office, Special Programs Bureau, Health Resources and Services Administration, 4350 East-West Highway, 10th Floor, Bethesda, Maryland 20814.
(a)
(b)
(c)
(d)
(e)
(1) If the injured person is a smallpox vaccine recipient, within one year after the effective date of the amendment to the Table; or
(2) If the injured person is a vaccinia contact, within two years after the effective date of the amendment to the Table.
(a)
(b)
(a) Persons other than a requester (
(b)
(c)
(d)
Multiple survivors of the same smallpox vaccine recipient or vaccinia contact may file Request Forms separately or together. Multiple survivors may also submit one set of any required documentation on behalf of all of the requesting survivors as long as such documentation is identical for each survivor.
(a)
(b)
(c)
(a) In order to establish that a smallpox vaccine recipient or vaccinia contact sustained a covered injury, a requester must submit the following medical records:
(1) All physician, clinic, or hospital outpatient medical records documenting medical visits, consultations, and test results that occurred on or after the date of the smallpox vaccination or exposure to vaccinia; and
(2) All inpatient hospital medical records, including the admission history and physical examination, the discharge summary, all physician subspecialty consultation reports, all progress notes, and all test results that occurred on or after the date of the smallpox vaccination or exposure to vaccinia.
(b) A requester may submit additional medical documentation that he or she believes will support the Request Package. Although generally not required if a Table injury was sustained, a requester may need to introduce additional medical documentation or scientific evidence in order to establish that an injury was caused by a covered countermeasure (including the smallpox vaccine) or vaccinia contracted through accidental vaccinia inoculation.
(c) If certain medical records listed in paragraph (a) of this section are unavailable to the requester after he or she has made reasonable efforts to obtain the records, the requester must submit a statement describing the reasons for the records' unavailability and the efforts he or she has taken to obtain the records. The Secretary has the discretion to accept such a statement in place of the unavailable medical records. In this circumstance, the Secretary may require an authorization from the requester (or his or her representative) to try to obtain the records on his or her behalf.
(d) In certain circumstances, the Secretary may require additional medical records to make a determination that a covered injury was sustained (
(a) A smallpox vaccine recipient must submit the following documentation in order to be deemed eligible by the Secretary:
(1) A completed (to the fullest extent possible) and signed Request Form.
(2) Documentation demonstrating that the requester:
(A) Is a health care worker, law enforcement officer, firefighter, security personnel, emergency medical personnel, other public safety personnel, or support personnel for such occupational specialties who has volunteered and been selected to be a member of a smallpox emergency response plan prior to the time at which the Secretary publicly announces that an active case of smallpox has been identified within or outside of the United States and that the requester is or will be functioning in a role identified in a smallpox emergency response plan; and
(B) Was administered a smallpox vaccine pursuant to an approved smallpox emergency response plan during the effective period of the Declaration.
(3) If the requester's injury relates to the administration of cidofovir or its derivatives or Vaccinia Immune Globulin, and not the smallpox vaccine, documentation demonstrating that the requester was administered such a covered countermeasure during the effective period of the Declaration.
(4) Medical records sufficient to demonstrate that the requester sustained a covered injury, as described in § 102.3(g), in accordance with the requirements set forth in § 102.50.
(b) As an alternative to the documentation described in paragraphs (a)(2)(A)-(B) of this section (documentation concerning a vaccine recipient's participation in, and receipt of the smallpox vaccine under, an approved smallpox emergency response plan), a requester may submit a certification, by a Federal, State, or local government entity or private health care entity participating in the administration of covered countermeasures through a smallpox emergency response plan, that the requester is a person described in § 102.3(x)(1)-(3) (a person meeting the definition of a smallpox vaccine recipient, except for the requirement that the person sustained a covered injury). A certification form that may be used for this purpose is available from the Program.
A requester who is a vaccinia contact must submit the following documentation in order to be deemed eligible by the Secretary:
(a) A completed (to the fullest extent possible) and signed Request Form;
(b) Documentation identifying the individual who was the source of the accidental vaccinia inoculation. This
(c) Medical records sufficient to demonstrate that the requester contracted vaccinia during the effective period of the Declaration (or within 30 days thereafter) and sustained a covered injury, as described in § 102.3(g), in accordance with the requirements set forth in § 102.50. These records must be consistent with the requester contracting vaccinia after the accidental vaccinia inoculation described in paragraph (b) of this section.
A requester who is a survivor must submit the following documentation in order to be deemed eligible by the Secretary:
(a) A completed (to the fullest extent possible) and signed Request Form;
(b) All of the documentation required in:
(1) Section 102.51(a)(2)-(4) (documentation requirements for smallpox vaccine recipients), in the case of a deceased smallpox vaccine recipient. The survivor requester may submit a certification, as described in § 102.51(b) in the place of the documentation described in § 102.51(a)(2) (documentation concerning a vaccine recipient's participation in, and receipt of the smallpox vaccine under, an approved smallpox emergency response plan); or
(2) Section 102.52(b)-(d) (documentation requirements for vaccinia contacts), in the case of a deceased vaccinia contact;
(c) A death certificate for the deceased smallpox vaccine recipient or vaccinia contact. If a death certificate is unavailable, the requester must submit a letter providing the reasons for its unavailability. The Secretary has the discretion to accept other documentation as evidence that the smallpox recipient or vaccinia contact is deceased;
(d) Medical records sufficient to demonstrate that the deceased smallpox vaccine recipient or vaccinia contact died as the result of the covered injury. Such medical records may be the same as those required under § 102.50. If an autopsy was performed on the deceased smallpox vaccine recipient or vaccinia contact, the requester must submit a complete copy of the final autopsy report.
(e) Documentation showing that the requester is an eligible survivor, pursuant to § 102.11 (
(f) A certification, on the place provided on the Request Form, either that there are no other eligible survivors (
A requester who is the representative of the estate of a deceased smallpox vaccine recipient or vaccinia contact must submit the following documentation in order for the estate to be deemed eligible by the Secretary:
(a) A completed (to the fullest extent possible) and signed Request Form;
(b) All of the documentation required in:
(1) Section 102.51(a)(2)-(4) (documentation requirements for smallpox vaccine recipients), in the case of a deceased smallpox vaccine recipient. The requester may submit a certification, as described in § 102.51(b) in the place of the documentation described in § 102.51(a)(2) (documentation concerning a vaccine recipient's participation in, and receipt of the smallpox vaccine under, an approved smallpox emergency response plan); or
(2) Section 102.52(b)-(d) (documentation requirements for vaccinia contacts), in the case of a deceased vaccinia contact;
(c) A death certificate for the deceased smallpox vaccine recipient or vaccinia contact. If a death certificate is unavailable, the requester must submit a letter providing the reasons for its unavailability. The Secretary has the discretion to accept other documentation as evidence that the smallpox recipient or vaccinia contact is deceased; and
(d) Documentation showing that the requester is the representative of the estate of the deceased smallpox vaccine recipient or vaccinia contact.
A requester deemed eligible by the Secretary who seeks payment or reimbursement for medical services or items must submit the following, in addition to the documentation submitted under subpart F:
(a)
(b)
(c)
A requester deemed eligible by the Secretary who seeks benefits for lost employment income from the Program must submit, in addition to the documentation submitted under subpart F, documentation describing:
(a) The number of days (including partial days) of work missed by the smallpox vaccine recipient or vaccinia contact as a result of the covered injury or its health complications for which employment income was lost (
(b) The smallpox vaccine recipient or vaccinia contact's gross employment income at the time the covered injury was sustained (
(c) Whether the smallpox vaccine recipient or vaccinia contact had one or more dependents at the time the covered injury was sustained (
(d) All third-party payors that have paid for or that may be required to pay the requester benefits for loss of employment income or provide disability and retirement benefits for which payment or reimbursement is being sought under this Program (
(a) A requester deemed an eligible survivor by the Secretary who seeks a death benefit under § 102.82(c) must submit, in addition to the documentation submitted under subpart F, a certification informing the Secretary whether a disability or death benefit was paid under the PSOB Program with respect to the deceased smallpox vaccine recipient or vaccinia contact. If such a benefit(s) was provided, the requester must submit documentation showing the amount of the benefit(s) provided by the PSOB Program. If no such benefits were provided, the certification must explain whether any survivors are eligible for a death benefit under the PSOB Program and, if so, whether death benefits have been sought under the PSOB Program.
(b) A representative seeking a death benefit under § 102.82(d) on behalf of a dependent requester younger than the age of 18 deemed an eligible survivor by the Secretary must submit, in addition to the documentation submitted under subpart F, the following:
(1) Documentation showing that the deceased smallpox vaccine recipient or vaccinia contact is survived by one or more dependents younger than the age of 18. Such documentation must show the date of birth of all such dependents (
(2) A written selection by each legal guardian, on behalf of all of the dependents described in paragraph (b)(1) of this section for whom he or she is the legal guardian, to receive proportional death benefits under the alternative calculation as described in § 102.82(d), in place of proportional benefits available under the standard calculation as described in § 102.82(c). Written selections are described in § 102.82(d)(1).
(3) Documentation showing that the requester is the legal guardian of all of the dependents described in paragraph (b)(1) of this section, as required under § 102.63(b). If multiple dependents have different legal guardians, the legal guardian of each dependent(s) must submit such documentation;
(4) Documentation showing the deceased smallpox vaccine recipient or vaccinia contact's gross employment income at the time the covered injury was sustained (
(5) A description of all third-party payors that have paid for or that may be required to pay for the benefits described in § 102.82(d)(3)(A). This description must include the amount of such benefits that have been paid or that may be authorized to be paid in the future. If the representative knows of no such third-party payor, he or she must certify to that fact. If, at any time, the representative becomes aware that a third-party payor may have such an obligation, he or she must inform the Secretary within 10 business days of becoming aware of this information.
Before benefits will be paid under by the Program to an eligible requester who is a minor or legally incompetent adult, his or her representative must submit, in addition to the documentation submitted under subpart F and under §§ 102.60-102.62, the following:
(a) Documentation showing that the requester is:
(1) A minor (
(2) A legally incompetent adult (
(b) Documentation showing that:
(1) In the case of a minor, the requester is the legal guardian of the minor (
(2) In the case of a legally incompetent adult, a decree by a court of competent jurisdiction establishing a guardianship or conservatorship of the requester's estate under applicable State law.
(a) Before reviewing a Request Package, the Secretary will assign a Program number to the Request Package and so inform the requester (or his or her representative) in writing. All correspondence to the requester (or his or her representative) about a specific Request Package will be referenced by this Program number.
(b) Before the Secretary will pay benefits under this Program, he must determine that:
(1) The requester or his or her representative submitted a completed (to the fullest extent possible) and signed Request Form within the governing filing deadline;
(2) The requester meets the eligibility requirements set out in this part (including a determination that a covered injury was sustained); and
(3) The requester is entitled to receive benefits from the Program. In making this determination, the Secretary will decide the type(s) and amounts of benefits that will be paid to the requester.
(c) Once the Secretary has sufficient documentation to make an eligibility or benefits determination, he will make the decision in a timely manner.
In the event that there is insufficient documentation in the Request Package for the Secretary to make the applicable determinations under this part, the Secretary will notify the requester, or his or her representative. The requester will be given 60 calendar days from the date of the Secretary's notification to submit the required documentation. If the requester is unable to provide the additional documentation, he or she may write to the Secretary and explain the reason that the requested documentation is unavailable and the efforts the requester has taken to obtain the documents. The Secretary may accept such a letter in place of the required documentation or disapprove the request due to insufficient documentation. If no documentation is submitted in response to the Secretary's letter, the Secretary may disapprove the request. The Secretary also may require an authorization from the requester (or his or her representative) to try to obtain required documentation on his or her behalf.
(a)
(b)
(c)
When the Secretary has determined that benefits will be paid to a requester and has calculated the type and amount of such benefits, he will notify the requester (or his or her representative) in writing. The Secretary will make payments in accordance with § 102.83.
(a) If the Secretary determines that a requester is not eligible for payments under the Program, the Secretary will disapprove the request and provide the requester, or his or her representative, with a written notice of the basis for the disapproval and the options available to the requester, including reconsideration.
(b) The Secretary may disapprove a request at any time, even before the requester has submitted required documentation (
In calculating medical benefits, the Secretary will take into consideration all reasonable costs for those medical items and services that are reasonable and necessary to diagnose or treat a smallpox vaccine recipient or vaccinia contact's covered injury or its health complications, as described in § 102.31. The Secretary will consider and may rely upon benefits documentation submitted by the requester (
(1) The Secretary will calculate the rate of benefits to be paid for the lost work days based on the smallpox vaccine recipient or vaccinia contact's gross employment income, which includes income from self-employment, at the time he or she sustained the covered injury. The Secretary may not, except with respect to injured individuals who are minors, consider projected future earnings in this calculation.
(A) For a smallpox vaccine recipient or vaccinia contact with no dependents at the time the covered injury was sustained, the benefits are 66
(B) For a smallpox vaccine recipient or vaccinia contact with one or more dependents at the time the covered injury was sustained, the benefits are 75% of the individual's gross employment income at the time the covered injury was sustained; and
(2) In the case of a smallpox vaccine recipient or vaccinia contact who is a minor, the Secretary may consider the provisions of 5 U.S.C. 8113 (part of the statute authorizing the FECA Program), and any implementing regulations, in determining the amount of payments under this section and the circumstances under which such payments are reasonable and necessary.
(b)
(c)
(1)
(2)
(3)
(d)
(1) For all payments made, or expected to be made in the future, to the requester for compensation of lost employment income or disability or retirement benefits, by any third-party payor in relation to the covered injury or its health complications, consistent with § 102.32(b); and
(2) So that the total amount of benefits for lost employment income paid to a requester under this Program, together with the total amounts paid (or payable) by third-party payors, as described in paragraph (d)(1) of this section, does not exceed 66
(e)
(a)
(1)
(2)
(3)
(4)
(b)
(2) If the Secretary approves a written selection to receive benefits under the alternative calculation, as described in paragraph (d)(1) of this section:
(A) If no other eligible survivors are of equal priority to receive death benefits, the Secretary will pay a death benefit in an amount calculated under the alternative calculation to the aggregate of the dependents on whose behalf the election was filed; and
(B) If other eligible survivors are of equal priority to receive death benefits as the dependents receiving death benefits under the alternative calculation, the Secretary will pay the other eligible survivors a proportionate amount of the death benefit available and calculated under the standard calculation. In such circumstances, the Secretary will pay the aggregate of the dependents receiving a death benefit under the alternative calculation a proportionate share of the benefits available under that calculation (in place of the proportionate share of the death benefit that would be available under the standard calculation). For example, if a deceased smallpox vaccine recipient is survived by a dependent 10-year old child and a spouse who is not the child's legal guardian (
(c)
(2) No death benefit will be paid under the standard calculation if a death benefit has been paid, or if survivors are eligible to receive a death benefit, under the PSOB Program with respect to the deceased person.
(3) No death benefit will be paid under the standard calculation if a disability benefit has been paid under the PSOB Program with respect to the deceased person. However, if the PSOB Program disability benefit paid was reduced because of a limitation on appropriations, a death benefit will be available under the standard calculation to the extent necessary to ensure that the total amount of disability benefits paid under the PSOB Program, together with the amount of death benefits paid under the standard calculation, equals the amount of the death benefit described in paragraph (c)(1) of this section.
(4) Death benefits will be paid under the standard calculation in a lump sum.
(d)
(1)
(2)
(A) The maximum payment of death benefits that may be made on behalf of the aggregate of the dependents in any one year is $50,000;
(B) All payments made under this paragraph will stop once the youngest of the dependents reaches the age of 18.
(3)
(A) The amount of death benefits paid under the alternative calculation will be reduced for all payments made, or expected to be made in the future, by any third-party payor for:
(i) Compensation for the deceased person's loss of employment income on behalf of the dependents or their legal guardian(s);
(ii) Disability, retirement, or death benefits in relation to the deceased person (including, but not limited to, death and disability benefits under the PSOB Program) on behalf of the dependents or their legal guardian(s); and
(iii) Life insurance benefits on behalf of the dependents.
(B) In calculating such reductions, the Secretary will deem any lump-sum payment made by a third-party payor under any obligation described in paragraph (d)(3)(A) of this section, as received over a period of years, rather than in a single year. The Secretary has discretion as to how to apportion such payments over multiple years.
(4)
(a) The Secretary may pay any benefits under this Program through lump-sum payments. If the Secretary determines that there is a reasonable likelihood that the payments of medical benefits, benefits for lost employment income, or death benefits paid under the alternative calculation (described in § 102.82(d)) will be required for a period in excess of one year from the date the Secretary determines the requester is eligible for such benefits, the Secretary may make a lump-sum payment, purchase an annuity or medical insurance policy, or execute an appropriate structured settlement agreement, provided that such payment, annuity, policy, or agreement is actuarially determined to have a value equal to the present value of the projected total amount of benefits that
(b) Lump sum payments will be made through an electronic funds transfer to an account of the requester. However, if the requester is a minor, the payment will be made to the account of his or her legal guardian on behalf of the minor. In accepting such payments, the legal guardian of a minor requester is obliged to use the funds for the benefit of the minor and to take any actions necessary to comply with state law requirements pertaining to such payments. If the requester is a legally incompetent adult, the legal guardian must establish a guardianship or conservatorship of the estate account with court oversight, in accordance with State law, and payment will be made to that account.
(c) The Secretary may, at his discretion, make interim payments of benefits under this Program, even before he makes a final determination as to the total type and total amount of benefits that will be paid. The Secretary may, for example, make an interim payment of medical benefits that have been calculated before a final determination on benefits for lost employment income is completed, or of past medical benefits that have been calculated before a final calculation of future medical benefits is completed. The Secretary may, in his discretion, make an interim payment even before a final eligibility or benefits determination is made (
Upon payment of benefits under this program, the Secretary will be subrogated to the rights of the requester and may assert a claim against any third-party payor with a legal or contractual obligation to pay for (or provide) such benefits and may recover from such third-party payor(s) the amount of benefits paid up to the amount of benefits the third-party payor has or had an obligation to pay for (or provide). In other words, the Secretary may pay benefits before the requester receives a payment from a third-party payor in specific circumstances. In those circumstances, the Secretary has a right to be reimbursed by the third-party payor. The circumstances in which the Secretary may assert this right include those in which the Secretary pays benefits under this Program to a requester before a final decision is made that a third-party payor has an obligation to pay such benefits to the requester. Requesters receiving benefits under this Program (or their representatives) shall assist the Secretary in recovering such benefits. In the event that a requester receives a benefit from a third-party payor after receiving the same type of benefits from the Secretary under this Program, the Secretary has a right to recover the amount of the benefits awarded from the requester.
(a)
(b)
(1) Letters sent through the U.S. Postal Service must be sent to the Associate Administrator, Special Programs Bureau, Health Resources and Services Administration, 5600 Fishers Lane, Room 16C-17, Rockville, Maryland 20857.
(2) Letters sent through a commercial carrier or private courier service must be sent to the Associate Administrator, Special Programs Bureau, Health Resources and Services Administration, 4350 East-West Highway, 10th Floor, Bethesda, Maryland 20814.
(c)
Under section 262(f)(1) of the Public Health Service Act (42 U.S.C. 239a(f)(1)), the Secretary may, at any time, review on his own motion or on application, any determination made under this part (including, but not limited to, determinations concerning eligibility, entitlement to benefits, and the calculation and payment of benefits under the Program). Upon review of such a determination, the Secretary may affirm, vacate, or modify the determination in any manner the Secretary deems appropriate.
Under section 262(f)(2) of the Public Health Service Act (42 U.S.C. 239a(f)(2)), no further judicial review of the Secretary's actions under this part (including, but not limited to, eligibility determinations, the calculation of benefits, and determinations about the method of payment of benefits) is permitted. In addition, no further administrative review of the Secretary's actions under this part is permitted
Environmental Protection Agency (EPA).
Proposed rulemaking.
The EPA is proposing to defer the effective date of air quality designations for certain areas of the country that do not meet the 8-hour ozone national ambient air quality standard (NAAQS). Early Action Compact (compact) areas have agreed to reduce ground-level ozone pollution earlier than the Clean Air Act (CAA) requires. By April 15, 2004, EPA will designate all areas for the 8-hour ozone NAAQS. The EPA is proposing that, when it promulgates the designations in April 2004, EPA will issue the first of three deferrals of the effective date of the designation for any compact area that is designated nonattainment and continues to meet all compact milestones. In this proposal, EPA is proposing to defer until September 30, 2005, the effective date of the 8-hour ozone nonattainment designation for specific areas.
The EPA believes this program provides an incentive for early planning, early implementation, and early reductions of emissions leading to expeditious attainment and maintenance of the 8-hour ozone standard. In addition, these compact agreements give local areas the flexibility to develop their own approach to meeting the 8-hour ozone standard, provided the communities control emissions from local sources earlier than the CAA would otherwise require. People living in areas that realize reductions sooner will enjoy the health benefits of cleaner air sooner than might otherwise occur.
This proposed rule does not propose to establish attainment/nonattainment designations, nor does it address the principles that will be considered in the designation process.
Comments must be received on or before January 15, 2004. The EPA does not intend to grant a request to extend the comment period due to the need to complete the designations process by April 2004. If EPA receives comments after the close of the comment period, we will make every effort to review them.
All comments should be submitted to Docket Number OAR 2003-0090 and a copy to David Cole, EPA. Comments may be submitted electronically, by mail, by facsimile, or through hand delivery/courier. Follow the detailed instructions as provided in unit I.A of the
Mr. David Cole, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-02, Research Triangle Park, NC 27711, phone number (919) 541-5565 or by e-mail at:
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute and which, therefore, 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 identified in unit I.A.1.
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.
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You may submit comments electronically, by mail, by facsimile, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure
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You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline identified.
8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
Ground-level ozone pollution is formed by the reaction of volatile organic compounds (VOC) and nitrogen oxides (NO
In 1979, we promulgated the 0.12 ppm (parts per million) 1-hour ozone standard, (44 FR 8202, February 8, 1979). On July 18, 1997, we promulgated a revised standard of 0.08 ppm, measured over an 8-hour period,
Ozone can irritate the respiratory system, causing coughing, throat irritation, and/or uncomfortable sensation in the chest. Ozone can reduce lung function and make it more difficult to breathe deeply, and breathing may become more rapid and shallow than normal, thereby limiting a person's normal activity. Ozone also can aggravate asthma, leading to more asthma attacks that require a doctor's attention and/or the use of additional medication. In addition, ozone can inflame and damage the lining of the lungs, which may lead to permanent changes in lung tissue, irreversible reductions in lung function, and a lower quality of life if the inflammation occurs repeatedly over a long time period (months, years, a lifetime). People who are particularly susceptible to the effects of ozone include children and adults who are active outdoors, people with respiratory disease, such as asthma, and people with unusual sensitivity to ozone.
More detailed information on health effects of ozone can be found at the following web site:
This action proposes an option that provides incentives for certain areas taking voluntary, early actions for reducing ozone for implementing the 8-hour ozone NAAQS. The option was discussed in EPA's June 2, 2003 proposed rulemaking (68 FR 32859) for implementing that standard. This section presents background information on the June 2, 2003 proposal.
On July 18, 1997, we revised the ozone NAAQS (62 FR 38856) by promulgating an ozone standard of .08 ppm as measured over an 8-hour period. At that time, we indicated that we believed that the 8-hour ozone NAAQS should be implemented under the less detailed requirements of subpart 1 of part D of title I of the CAA rather than the more detailed requirements of subpart 2. Various industry groups and States challenged EPA's final rule promulgating the 8-hour ozone NAAQS in the U.S. Court of Appeals for the District of Columbia Circuit.
In response to the Court's remand, we proposed the 8-hour ozone implementation rule on June 2, 2003 (68 FR 32802). We plan to issue a final rule on an implementation approach in the near future.
Section 107(d) of the CAA establishes a deadline for EPA to promulgate designations of areas.
At the time we designate areas in April 2004, we plan to take final action to defer the effective date of the nonattainment designation on a rolling basis for participating compact areas that are monitoring a violation of the 8-hour ozone standard, provided all terms of the agreement continue to be met, including timely completion of all compact milestones and reports. In today's rule, we are proposing to establish the first of three deferred effective dates. At the same time we designate all areas either attainment or nonattainment, we will take final action determining whether to defer until September 30, 2005, the effective date of the nonattainment designation for the 8-hour ozone standard for compact areas that are violating the standard, provided
Prior to the time the first deferral expires, EPA intends to take further action to propose and, as appropriate, promulgate a second deferred effective date of the nonattainment designation for those areas that continue to fulfill all compact obligations. Finally, prior to the time the second deferral expires, EPA would propose and, as appropriate, promulgate a third deferral for those areas that continue to meet all compact milestones.
As discussed in the proposed 8-hour implementation rule, State, local and Tribal air pollution control agencies have continued to express a need for added flexibility in implementing the 8-hour ozone NAAQS, including incentives for taking action sooner than the CAA requires for reducing ground-level ozone. The compact program permits local areas to make decisions that will achieve reductions in VOC and NO
In March 2002, the Texas Commission on Environmental Quality (TCEQ) encouraged EPA to consider incentives for early planning towards achieving the 8-hour ozone NAAQS. The TCEQ submitted to EPA the Protocol for Early Action Compacts Designed to Achieve and Maintain the 8-hour Ozone Standard (Protocol). The Protocol was designed to achieve NO
1. Early planning, implementation, and emissions reductions leading to expeditious attainment and maintenance of the 8-hour ozone standard;
2. Local control of the measures employed, with broad-based public input;
3. State support to ensure technical integrity of the early action plan;
4. Formal incorporation of the early action plan into the State implementation plan (SIP);
5. Designation of all areas as attainment or nonattainment in April 2004, but, for compact areas, deferral of the effective date of the nonattainment designation and/or designation requirements so long as all compact terms and milestones continue to be met; and
6. Safeguards to return areas to traditional SIP attainment requirements should compact terms be unfulfilled (
In a letter dated June 19, 2002, from Gregg Cooke, Administrator, Region 6, to Robert Huston, Chairman, TCEQ, EPA endorsed the principles outlined in the Protocol. The Protocol was subsequently revised on December 11, 2002, based on comments from EPA.
The Protocol specifies certain components that compacts are addressing, including the development of local air quality plans and the following elements:
1. Completion of emissions inventories and modeling (based on most recent Agency guidance) to support selection of local control measures;
2. Adoption of control strategies that demonstrate attainment and that are submitted as a revision to the SIP;
3. Completion of a component to address emissions growth at least 5 years beyond December 31, 2007, ensuring that the area will remain in attainment of the 8-hour ozone standard during that period;
4. Public involvement in all stages of planning and implementation, including public education programs and a process that ensures stakeholder involvement and public participation in planning local strategies and reviewing air quality plans; and
5. Semiannual reports detailing progress toward completion of compact milestones.
The Protocol and Agency guidance (EPA memorandum dated November 14, 2002, described in section IV, and EPA memorandum dated April 4, 2003
The EPA's November 14, 2002, memorandum specified that compacts must be completed, submitted to EPA and signed by local, State and EPA officials by December 31, 2002. We intend to honor the commitments established in these agreements, provided these areas meet all components of the Protocol and Agency guidance and schedules. No additional areas were allowed to enter into compacts after December 31, 2002.
The Protocol describes the process by which compact areas are required to select control strategies based on SIP-quality modeling that shows attainment of the 8-hour ozone standard no later than December 31, 2007, through implementation of control strategies. The EPA specified that all compact areas must submit a local plan by March 31, 2004 that will include measures that are specific, quantified, and permanent and that, if approved into the SIP by EPA, will be federally enforceable. The March 31, 2004 submission must also include specific implementation dates for the local controls, as well as detailed documentation supporting the selection of measures. Controls must be implemented no later than December 31, 2005, which is at least 16
Table 1 describes the milestones and submissions that compact areas are required to complete in order to continue eligibility for a deferral of the effective date of nonattainment designation for the 8-hour ozone standard.
According to the Protocol, EPA would recognize the local area's commitment to early, voluntary action by designating the compact areas violating the 8-hour NAAQS as nonattainment in April 2004 (at the time of national designations for all areas), but deferring the effective date of the nonattainment designation, so long as all terms and milestones of the Compact continue to be met. A copy of the revised Protocol is available in the docket for this proposed rulemaking.
We have entered into compacts with 33 communities. A list of these areas is presented in Table 2.
Compact areas are continuing to make good progress toward timely completion of their milestones. All 33 communities met the June 16, 2003 milestone, which required areas to submit a list and description of local control measures each area is considering for adoption and implementation. In addition, all 33 compact areas submitted the June 30, 2003 progress report. The June 16 submissions contained many innovative measures that EPA believes have the potential to reduce air pollution, while at the same time, produce additional benefits for these communities. For example, many compact areas are considering electrified truck stops to replace the need for engine idling during truck loading or unloading. A number of other areas are considering the addition of cetane additives to fuel for increased fuel efficiency. San Antonio's list of measures includes a walking school bus program. Under this program, parents rotate the responsibility of walking groups of students to school in lieu of going by bus or by car. The Center for Disease Control reports that lack of exercise is one of the primary reasons why childhood obesity has reached epidemic proportions in the U.S. In addition to reducing vehicle miles traveled (VMT), thus decreasing mobile source emissions, a walking school bus program provides children with another opportunity to get physical exercise.
Stakeholders for the Austin, Texas compact are exploring an expedited permitting process for “mixed use, transit-oriented, infill development.” Mixing land uses can reduce VMT in several ways, including trip lengths, mode choice and vehicle ownership. In a recent study, EPA has concluded that by encouraging people to walk, bike, and use transit rather than drive, mixed-use development patterns reduce VMT, thereby decreasing automobile emissions and improving regional air quality.
The EPA believes that these types of long-term, land use changes can reduce air pollution well into the future, as well as produce multiple benefits that go beyond cleaner air. Such additional effects include an increase in mobility for all segments of the population, an increase in physical activity and an improved quality of life. These are the kinds of measures that EPA would like to see more areas explore, but for which the CAA provides no real incentives. Based on the many innovative and creative measures contained in the June 16, 2003 submission, we believe that the Early Action Compact program can provide such an incentive.
Compact areas that are not violating the 8-hour ozone standard using 2001-2003 ozone monitoring data will be designated attainment at the time we designate areas in April 2004. In most cases, compact areas that would not be in violation of the 8-hour standard when designations are made in April 2004 would have ozone design values near 85 parts per billion (ppb), and therefore, are at risk for violating the 8-hour ozone standard in subsequent ozone seasons (
A total of 146 counties are covered by compacts. Sixty-four of these counties have ozone monitors and 82 counties do not. Table 3 below summarizes 2000-2002 air quality data that are available for the 146 counties participating in the program. However, in April 2004, EPA will designate areas based on 2001-2003 data; therefore, the air quality status of some compact areas may change for the purpose of designating areas for the 8-hour ozone standard.
This section discusses the effect of this proposed rule on compact areas, including the regulatory effects and the consequences of participation in these compacts.
Since the effective date of the nonattainment designation would be deferred for compact areas that are violating the 8-hour standard, all CAA requirements for the 8-hour standard that would apply to an area designated nonattainment for that standard, such as new source review (NSR) and transportation conformity, would not apply during the deferral period.
In April 2004, the Agency will designate areas as nonattainment based on 2001-2003 air quality monitoring data. However, based on 2000-2002 data, we do know that of those compact areas that are violating the 8-hour ozone standard, most are very close to the standard. We believe many of these areas, if their nonattainment designations were not deferred, would be classified under subpart 1 of the CAA, if EPA adopted its preferred classification scheme described in the June 2, 2003 proposed rule to implement the 8-hour ozone standard (68 FR 32866). Table 4 is a summary of the requirements that would apply if compact areas do not receive a deferred nonattainment effective date and instead become classified under subpart 1. Providing information about subpart 1 requirements in this notice does not imply that we have decided not to adopt our proposed classification option 1, which would have placed all areas under subpart 2.
Conversely, with a deferred effective date, a compact area would not be subject to the requirements listed above, as long as the area continues to meet all of its milestones as described in Section V, Table 1, of this notice.
In addition to the benefit of early reductions, there are other
1. Compacts give local areas the flexibility to develop their own approach to meeting the 8-hour ozone standard, provided the communities control emissions from local sources earlier than the CAA would otherwise require, consistent with timelines in the Protocol.
2. If all terms of the agreement are met, EPA would defer the effective date of the nonattainment designation for compact areas.
3. People living in areas that realize reductions sooner will enjoy the health benefits of cleaner air sooner than might otherwise occur.
4. Reductions in emissions from pollution control measures that are implemented as part of a compact are creditable toward air quality planning goals, to the extent credit is allowed by EPA guidance and the CAA.
5. Success of compacts depends on active and sustained participation by all stakeholders.
6. Compact areas (as well as non-compact areas) that are maintenance areas for the 1-hour ozone standard would still be subject to transportation conformity requirements for the 1-hour standard while the maintenance plan for the area is still in force under section 175A of the CAA. (Note that EPA has proposed that when it revokes the 1-hour ozone standard, transportation conformity under the 1-hour standard would no longer apply to 1-hour maintenance areas.)
7. Compact areas in the Ozone Transport Region are still subject to nonattainment NSR in accordance with section 184(b)(2) of the CAA for so long as the 1-hour ozone NAAQS continues to apply.
8. Because they are not considered nonattainment for the 8-hour ozone NAAQS until the effective date, compact areas are not eligible for Congestion Mitigation and Air Quality Improvement Program (CMAQ) funds for purposes of the 8-hour ozone NAAQS.
9. Compact areas have an aggressive, accelerated program of milestones to meet. If an area misses a milestone, its nonattainment designation will take effect, and as such, will be subject to all of the requirements for nonattainment areas.
Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate areas as attaining or not attaining that NAAQS. The CAA then specifies requirements for areas based on whether such areas are attaining or not attaining the NAAQS. This proposed rule provides flexibility for areas that have entered into a compact and take early action to achieve emissions reductions necessary to attain the 8-hour ozone standard. This action proposes to defer the effective date of the nonattainment designation for these areas and would allow these areas to adopt control requirements agreed to by the affected localities.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant” and, therefore, subject to Office of Management and Budget (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 entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been determined that this rule is not a “significant regulatory action” because none of the above factors applies. As such, this proposed rule was not formally submitted to OMB for review.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
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 Procedures Act or any other statute unless the Agency certifies 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.
For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as: (1) A small business that is a small industrial entity as defined in the U.S. Small Business Administration (SBA) size standards. (See 13 CFR 121.); (2) a 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.
After considering the economic impacts of today's proposed rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small entities. Rather, this rule would defer the effective date of the nonattainment designation for areas that implement control measures and achieve emissions reductions earlier than otherwise required by the CAA in order to attain the 8-hour ozone NAAQS. In addition, States and local areas that have entered into compacts with EPA have the flexibility to decide what to regulate in their communities.
Title II of the Unfunded Mandates Reform Act of 1995 (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 1 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
The EPA has determined that this 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 1 year. Today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.
The CAA requires States to develop plans, including control measures, based on their designations and classifications. In this rule, EPA is deferring the effective date of nonattainment designations for certain areas that have entered into compacts with us. This rule is not establishing a specific requirement for States to submit SIPs, nor does it impose any regulatory requirements. However, even if this rule did establish such a requirement, it is questionable whether a requirement to submit a SIP revision would constitute a Federal mandate in any case. The obligation for a State to submit a SIP that arises out of section 110 and part D of the CAA is not legally enforceable by a court of law, and at most is a condition for continued receipt of highway funds. Therefore, it is possible to view an action requiring such a submittal as not creating any enforceable duty within the meaning of section 421(5)(9a)(I) of UMRA (2 U.S.C. 658(a)(I)). Even if it did, the duty could be viewed as falling within the exception for a condition of Federal assistance under section 421(5)(a)(i)(I) of UMRA (2 U.S.C. 658(5)(a)(i)(I)).
In the proposal, EPA has determined that this rule contains no regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments. Nonetheless, EPA carried out consultations with governmental entities affected by this rule, including States and local air pollution control agencies.
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.”
This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Finally, the CAA establishes the scheme whereby States take the lead in developing plans to meet the NAAQS. This proposed rule would not modify the relationship of the States and EPA for purposes of developing programs to implement the NAAQS. Thus, Executive Order 13132 does not apply to this proposed rule.
Although section 6 of Executive Order 13132 does not apply to this rule, EPA discussed the compact program with representatives of State and local air pollution control agencies, as well as the Clean Air Act Advisory Committee, which is also composed of State and local representatives.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have “Tribal implications” as specified in Executive Order 13175.
This proposed rule concerns the deferral of the effective date of nonattainment designation of the 8-hour ozone standard in compact areas that do not meet that standard, but continue to meet compact milestones. The CAA provides for States and Tribes to develop plans to regulate emissions of air pollutants within their jurisdictions. Early Action Compact areas that would be affected by this proposed rule would be required to develop and submit local plans for adoption and implementation of the 8-hour ozone standard earlier than the CAA requires. These plans would be submitted to EPA as SIP revisions in December 2004 rather than in April 2007. The Tribal Authority Rule (TAR) gives Tribes the opportunity to develop and implement CAA programs such as the 8-hour ozone NAAQS, but it leaves to the discretion of the Tribe whether to develop these programs and which programs, or appropriate elements of a program, they will adopt.
This proposed rule does not have Tribal implications as defined by Executive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes, since no Tribe has implemented a CAA program to attain the 8-hour ozone NAAQS at this time or has participated in a compact. Furthermore, this proposed rule does not affect the relationship or distribution of power and responsibilities between the Federal government and Indian Tribes. The CAA and the TAR establish the relationship of the Federal government and Tribes in developing plans to attain the NAAQS, and this proposed rule does nothing to modify that relationship. Because this proposed rule does not have Tribal implications, Executive Order 13175 does not apply.
Although Executive Order 13175 does not apply to this proposed rule, EPA did outreach to Tribal representatives to inform them about the compact program, its impact on designations, and this proposed rule. The EPA supports a national “Tribal Designations and Implementation Work Group” which provides an open forum for all Tribes to voice concerns to EPA about the designation and implementation process for the 8-hour ozone standard. These discussions have given EPA valuable information about Tribal concerns regarding designations and implementation of the 8-hour ozone NAAQS. The EPA has encouraged Tribes to participate in the national public meetings held to take comment on early approaches to the proposed rule. Several Tribes made public comments at the April 2002 public meeting in Tempe, Arizona. The EPA specifically solicits additional comment on this proposed rule from Tribes.
Executive Order 13045: “Protection of Children From Environmental Health 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 disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
The proposed rule is not subject to Executive Order 13045 because the Agency does not have reason to believe the environmental health risks or safety risks addressed by this rule present a disproportionate risk to children. Nonetheless, we have evaluated the environmental health or safety effects of the 8-hour ozone NAAQS on children. The results of this evaluation are contained in 40 CFR part 50, NAAQS for Ozone, Final Rule (62 FR 38855-38896; specifically, 62 FR 38854, 62 FR 38860 and 62 FR 38865).
This proposed rule is not a “significant energy action” as defined in Executive Order 13211, “Actions That Significantly Affect Energy Supply, Distribution, or Use,” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
Information on the methodology and data regarding the assessment of potential energy impacts is found in Chapter 6 of U.S. EPA 2002, Cost, Emission Reduction, Energy, and Economic Impact Assessment of the Proposed Rule Establishing the Implementation Framework for the 8-Hour, 0.08 ppm Ozone National Ambient Air Quality Standard, prepared by the Innovative Strategies and Economics Group, Office of Air Quality Planning and Standards, Research Triangle Park, N.C. April 24, 2003.
Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Pub. L. No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any VCS.
The EPA will encourage States that have compact areas to consider the use of such standards, where appropriate, in the development of their SIPs.
Executive Order 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionate high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations.
The EPA believes that this proposed rule should not raise any environmental justice issues. The health and environmental risks associated with ozone were considered in the establishment of the 8-hour, 0.08 ppm ozone NAAQS. The level is designed to be protective with an adequate margin of safety.
Air pollution control, Environmental protection.
42 U.S.C. 7408; 42 U.S.C. 7410; 42 U.S.C. 7501-7511f; 42 U.S.C. 7601(a)(1).