Agricultural Marketing Service
Foreign Agricultural Service
Forest Service
Grain Inspection, Packers and Stockyards Administration
Rural Utilities Service
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Food and Drug Administration
Citizenship and Immigration Services Bureau
Coast Guard
Fish and Wildlife Service
Land Management Bureau
Surface Mining Reclamation and Enforcement Office
Justice Programs Office
Employee Benefits Security Administration
Employment and Training Administration
Employment Standards Administration
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Research and Special Programs Administration
Surface Transportation Board
Comptroller of the Currency
Internal Revenue Service
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Grain Inspection, Packers and Stockyards Administration, USDA.
Final rule.
The Federal Grain Inspection Service (FGIS), a program of the Grain Inspection, Packers and Stockyards Administration (GIPSA), is increasing the fees for processed commodity analytical services performed under the Agricultural Marketing Act (AMA) of 1946 and removing certain tests from the fee schedule. These changes are needed to cover rising fixed costs and increased operational costs resulting from the mandated January 2003 Federal pay increase. GIPSA anticipates that this increase in user fees will generate approximately $135,000 in additional yearly revenue.
February 12, 2004.
Steven Tanner, Director, Technical Services Division, at his e-mail address:
This rule has been determined to be nonsignificant for the purpose of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).
Also, pursuant to the requirements set forth in the Regulatory Flexibility Act, Donna Reifschneider, Administrator, GIPSA, has determined that this final rule will not have a significant economic impact on a substantial number of small entities as defined in the Regulatory Flexibility Act (5 U.S.C. 601
GIPSA regularly reviews its user-fee-financed programs to determine if the fees are adequate. Additionally, GIPSA has and will continue to seek out cost saving opportunities and implement appropriate changes to reduce costs. Such actions can provide alternatives to new or increased fees. However, even with these efforts, GIPSA has determined that its existing fee schedule will not generate sufficient revenues to cover program costs for providing processed commodity testing services. Further revenue losses are projected if adjustments to the existing fee schedule are not made. In Fiscal Year (FY) 2002, GIPSA's operating costs for the processed commodity testing program were $233,707 with revenue of $104,380 that resulted in a negative margin of $129,327.
GIPSA has reviewed the financial position of the processed commodity testing program and concluded that $135,000 in additional yearly revenue is needed to fully recover operating costs. This is based on projected program costs of approximately of $240,000 a year and an estimated testing workload of approximately 1,700 samples per year. These revisions are designed to generate revenue sufficient to cover, as nearly as practicable, operational costs resulting from a steep decline in requests for services and the associated loss of revenue and increased operational costs resulting from the mandated 4.1 percent January 2003 Federal pay increase. In FY 1999, the number of samples tested was 16,377, which generated $1,475,579 in revenue; in FY 2000, 12,872 samples were tested, with revenue of $1,212,215; in FY 2001, 3,620 samples were tested, with revenue of $219,033; and in FY 2002, 1755 samples were tested, with revenue of $104,380. The changes to the fee schedule will increase the fees charged to businesses for voluntary processed commodity analytical services and generate approximately $135,000 in additional revenue. Some of these businesses, which consist of processors and shippers of products, such as wheat flour, vegetable oil, and corn meal, may meet the criteria for small entities established by the Small Business Administration criteria for small businesses. Even so, the new fees are not excessive and should not significantly affect those entities. It is estimated that there will be nine entities affected. Further, those entities are under no obligation to use GIPSA services and, therefore, any decision on their part to discontinue the use of this service should not prevent them from marketing their products. Due to the decline in demand of the processed commodity analytical testing services, GIPSA will conduct another analysis of the demand for this program's services, including all costs and revenues generated specific to the program, one year after operating under the new fee schedule.
There will be no additional reporting or record keeping requirements imposed by this action. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 35), the information collection and record keeping requirements in part 800 have been previously approved by OMB under control number 0580-0013. GIPSA has not identified any other Federal rules which may duplicate, overlap, or conflict with this rule.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have a retroactive effect. This action 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 that must be exhausted prior to any judicial challenge to the provisions of this rule.
On July 18, 2003, GIPSA proposed in the
The processed commodity testing services fees were last amended on April 4, 2001, and became effective May 4, 2001 (66 FR 17775). These fees were to cover, as nearly as practicable, the level of operating costs as projected for FY 2001 and FY 2002, respectively. GIPSA continually monitors its cost, revenue, and operating reserve levels to ensure that there are sufficient resources for operations. Further, GIPSA has implemented cost-saving measures in the processed commodity program in an effort to provide more cost-effective services. The cost containment measures included a reduction in full-time commodity testing laboratory personnel and increased cross utilization of personnel from other GIPSA programs.
GIPSA regularly reviews its user-fee-financed programs to determine if the fees are adequate and continues to seek out cost saving opportunities and implement appropriate changes to reduce costs. Such actions can provide alternatives to fee increases. However, even with these efforts, GIPSA's previous fee schedule did not generate sufficient revenues to cover program costs. Using the most recent data available, GIPSA's FY 2002 operating costs for this program were $233,707 with revenue of $104,380 that resulted in a negative margin of $129,327.
GIPSA has reviewed the financial position of its processed commodity testing program. Based on this review, GIPSA has concluded that it needs to generate $135,000 in additional yearly revenue to recover program costs.
GIPSA did not receive any comments in response to the proposed rulemaking published on July 18, 2003, at 68 FR 42644.
Section 203(h) of the AMA (7 U.S.C. 1622(h)) provides for the establishment and collection of fees that are reasonable and, as nearly as practicable, cover the costs of the services rendered. These fees cover the GIPSA administrative and supervisory costs for the performance of official testing services, including personnel compensation and benefits, travel, rent, communication, utilities, contractual services, supplies, and equipment.
Accordingly, GIPSA is revising the fees for processed commodity analytical services performed under the AMA in 7 CFR 868.90, paragraph (d), Table 2—Fees for Laboratory Test Services.
Administrative practice and procedure, Agricultural commodities.
Secs. 202-208, 60 Stat. 1087, as amended (7 U.S.C. 1621,
(d) Laboratory tests referenced in table 2 of this section will be charged at the applicable laboratory fee.
Office of the Comptroller of the Currency, Treasury.
Final rule.
The Office of the Comptroller of the Currency (OCC) is publishing its final rule amending its visitorial powers regulation in order to clarify issues that have arisen in connection with the scope of the OCC's visitorial powers.
February 12, 2004.
For questions concerning the final rule, contact Andra Shuster, Counsel, or Mark Tenhundfeld, Assistant Director, Legislative and Regulatory Activities Division, (202) 874-5090.
On February 7, 2003, the OCC published a notice of proposed rulemaking in the
On December 17, 2003, the OCC published a final rule that addressed all of the foregoing parts of the proposal except visitorial powers (68 FR 70122). This final rule relates solely to the visitorial powers proposal (proposal).
The OCC received 55 comments on the NPRM. Of these, 53 comments addressed the visitorial powers proposal. These comments included three from national banks, one from an operating subsidiary of a national bank, six from bank holding companies, five from banking trade associations, two from bank membership organizations, one from a community group association, two from non-profit consumer groups, one from a state bank supervisors' association, 30 from state bank supervisors' offices, one from a securities administrators' membership organization, and one from a law enforcement association.
While many of the commenters supported the proposal, some were opposed, and many offered suggestions for changes. For the reasons discussed later in this preamble, we have adopted the visitorial powers provisions of the NPRM with certain modifications also described later.
Current 12 CFR 7.4000(a) provides that only the OCC or an authorized representative of the OCC may exercise visitorial powers with respect to national banks, subject to exceptions provided in Federal law. Section 7.4000(a) goes on to define the regulatory, supervisory, and enforcement actions included within our visitorial powers, while § 7.4000(b) sets out several exceptions to our exclusive authority that are created by Federal law.
These provisions interpret and implement 12 U.S.C. 484. Paragraph (a) of that section states—
No national bank shall be subject to any visitorial powers except as authorized by Federal law, vested in the courts of justice or such as shall be, or have been exercised or directed by Congress or by either House thereof or by any committee of Congress or of either House duly authorized.
In recent years, various questions have arisen with respect to the scope of the OCC's visitorial powers over national banks. In general, the questions fall into two broad categories: First, what activities conducted by a national bank are subject to the OCC's
The NPRM invited comments on proposed amendments to § 7.4000 to clarify the application of section 484 to both areas.
The proposal contained two types of changes to § 7.4000. First, we proposed to add a new paragraph (3) to § 7.4000(a) that identifies the scope of the activities of national banks for which the OCC's visitorial powers are exclusive, pursuant to section 484. The proposal provided that the OCC has exclusive visitorial authority over national bank activities that are permissible under Federal law or regulation or OCC issuance or interpretation, including how those activities are conducted. Second, we proposed to revise § 7.4000(b) to clarify the OCC's interpretation of the “vested in the courts of justice” exception. The proposal provided that national banks are subject to the visitorial power inherently vested in courts and that the “vested in the courts of justice” exception did not create or expand any authority of states or other governmental entities to regulate or supervise national banks. As we will discuss in greater detail later in this preamble, both of these changes serve to clarify that Federal law commits the supervision of national banks' Federally-authorized banking business exclusively to the OCC, (except where Federal law provides otherwise), and does not apportion that responsibility among the OCC and the states; and that state authorities may not achieve indirectly by resort to judicial actions what section 484 prohibits them from achieving directly through state regulatory or supervisory mechanisms. The proposal also added an exception in proposed new § 7.4000(b)(vi) recognizing that functional regulators may exercise the authority over national banks conferred by the Gramm-Leach-Bliley Act (GLBA).
Many commenters supported the proposal, noting that the clarification of the visitorial powers regulations would be helpful. One commenter said that subjecting national banks' Federally-authorized activities to state regulation would be inconsistent with the purposes of the National Bank Act. Others noted that additional layers of state supervision would have the effect of making the operations of national banks less efficient and more costly. Commenters also stated that they supported the proposal's clarification of
We also received a number of comments that opposed the proposal. These commenters advanced four principal points: first, that the visitorial powers amendments are inconsistent with the fundamental tenets of the dual banking system, pursuant to which national banks are subject to state regulation; second, that the amendments are inconsistent with the presumptive applicability of state law to national banks, as endorsed by the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994 (the Riegle-Neal Act);
Many commenters opposed to the proposal argued that the amendments would amount to a “field preemption” that would be inconsistent with what they aver to be a fundamental tenet of the dual banking system, namely, that states have the authority to regulate the business operations of all banks, including national banks, unless Congress preempts state law in specific areas.
This argument mischaracterizes the essence of the dual banking system. Differences in national and state bank powers and in the supervision and regulation of national and state banks are not inconsistent with the dual banking system; rather they are the defining characteristics of it. As one noted commenter has observed, “[t]he very core of the dual banking system is the simultaneous existence of different regulatory options that are
Neither the case law nor scholarly literature recognizes a definition of dual banking incorporating the notion that national banks are subject to state supervision and regulation of activities they are authorized to conduct under Federal banking law.
“Depository financial institutions in the United States, including banks, credit unions, and thrifts, are unique in that their incorporators and/or management have a choice between state and federal charters, regulatory authorities, and governing statutes. No other industry has separate and distinct laws governing its powers, regulation, and organizational structure. This phenomenon is known as the ‘dual banking system’.”
John J. Schroeder,
The argument that the proposed amendments generally amount to an impermissible “field preemption” is also misplaced. First, the regulatory proposal and the final regulation would not have the effect of preempting substantive state laws, but rather would clarify the appropriate agency for enforcing those state laws that are applicable to national banks. Concerns about “field preemption” are misplaced since the rule pertains only to state laws that would provide for state “visitation” of national banks. The proposal and this final rule interpret the text of a Federal statute, 12 U.S.C. 484, that expressly confines the scope of permissible supervision over national banks to what is provided in Federal law, including the limited exception for state inspection of certain records that is contained in section 484. Thus, Congress has spoken to the issue. Our amendments to our visitorial powers rule seek to define the terms used in the statute in order to provide greater certainty to affected parties with regard to the specific issue of visitation.
Commenters also argued that the amendments in the proposal are inconsistent with the presumptive application of state law to national banks, which they assert was specifically endorsed by Congress in the Riegle-Neal Act.
However, case law, whether decided before or after Riegle-Neal was enacted, is consistent in holding that there is no presumption against preemption in the national bank context. The Supreme Court has said that a presumption against preemption “is not triggered when the State regulates in an area where there has been a history of significant federal presence.”
[W]here Congress has not expressly conditioned the grant of ‘power’ upon a grant of state permission, the Court has ordinarily found that no such condition applies. In
The relevant text of the Riegle-Neal Act is fully consistent with these conclusions. In fact, it is entirely consistent with the proposal and final rule in providing that even when state law may be applicable to interstate branches of national banks, the OCC is to enforce such laws,
The laws of the host State regarding community reinvestment, consumer protection, fair lending, and establishment of intrastate branches shall apply to any branch in the host State of an out-of-State national bank to the same extent as such State laws apply to a branch of a bank chartered by that State,
(i) When Federal law preempts the application of such State laws to a national bank; * * *
(B) Enforcement of applicable State laws
The provisions of any State law to which a branch of a national bank is subject under this paragraph
Thus, although Riegle-Neal section 36(f) clarifies that the laws of the host state regarding community reinvestment, consumer protection, and fair lending would be applicable to branches of an out-of-state national bank located in the host state,
Some commenters argued that the OCC's visitorial power is not exclusive because (1) the text of the statute does not contain an explicit grant of exclusive authority to the OCC; and (2) courts have permitted states to exercise concurrent authority to seek enforcement of state laws. These two contentions are addressed in turn.
Commenters who opposed the proposal argued that the OCC may not rely on 12 U.S.C. 484 as the basis for our exclusive jurisdiction because that section is silent on precisely who has visitorial powers over national banks. A review of the history of section 484 shows that this reading of the statute is fundamentally mistaken.
In the Act of June 3, 1864, later named the National Bank Act, the visitorial powers provision appeared in the
These examination and visitorial provisions of section 54 were codified together in 1875 at section 5240 of the Revised Statutes of the United States. Section 5240 explicitly gave the OCC visitorial authority over national banks
The examination and visitorial provisions were split, slightly revised, then later reunited, in subsequent codifications,
Moreover, exclusivity is inherent in the structure of the statute, both as originally enacted and today. The visitorial powers provision first sets forth a complete prohibition, then subjects that prohibition to certain exceptions.
As we discussed when we issued the visitorial powers proposal, any allocation of general supervisory authority over national banks to the states would be inconsistent with the history and purpose of the National Bank Act, as well as with the express language of the statute. Congress enacted the National Currency Act (Currency Act) in 1863 and the National Bank Act the year after for the purpose of establishing a new national banking system that would operate distinctly and separately from the existing system of state banks. The Currency Act and National Bank Act were enacted to create a uniform and secure national currency and a system of national banks designed to help stabilize and support the post-Civil War national economy.
Both proponents and opponents of the new national banking system expected that it would supersede the existing system of state banks.
The allocation of any supervisory responsibility for the new national banking system to the states would have been inconsistent with this need to protect national banks from state interference.
Courts have consistently recognized the unique status of the national banking system and the limits placed on states by the National Bank Act. The Supreme Court stated in one of the first cases to address the role of the national banking system that “[t]he national banks organized under the [National Bank Act] are instruments designed to be used to aid the government in the administration of an important branch of the public service. They are means appropriate to that end.”
In
Congress had in mind in passing this section [section 484] that in other sections of the law it had made full and complete provision for investigation by the Comptroller of the Currency and examiners appointed by him, and, authorizing the appointment of a receiver, to take possession of the business with a view to winding up the affairs of the bank. It was the intention that this statute should contain a full code of provisions upon the subject, and that no state law or enactment should undertake to exercise the right of visitation over a national corporation. Except in so far as such corporation was liable to control in the courts
The Supreme Court also has recognized the clear intent on the part of Congress to limit the authority of states over national banks precisely so that the nationwide system of banking that was created in the Currency Act could develop and flourish. For instance, in
Being such means, brought into existence for this purpose, and intended to be so employed, the States can exercise no control over them, nor in any wise affect their operation, except in so far as Congress may see proper to permit. Any thing beyond this is “an abuse, because it is the usurpation of power which a single State cannot give.”
Our proposed amendment clarifying the scope of the visitorial powers authorized to the OCC pursuant to section 484 is consistent with the historical meaning of the term “visitation” and with cases discussing section 484. The Supreme Court in
Several commenters asserted that states retain jurisdiction concurrent with the OCC to enforce compliance with state laws against national banks in both state and Federal court.
A few commenters cited
The principal means in use today for testing the application of state law to national banks—declaratory judgment—was unavailable to the states prior to the enactment of the Declaratory Judgment Act in 1934, 28 U.S.C. 2201 through 2202. If this type of action had been available at the time of the
Moreover, the OCC has enforcement authority today that did not exist when
The essential elements of
This purpose is effectuated by the plain language of the statute. The exception permits the exercise of “visitorial powers” that are “
To read the
Under this construction of section 484, states remain free to seek a declaratory judgment from a court as to whether a particular state law applies to the Federally-authorized business of a national bank or is preempted. However, if a court rules that a state law is not preempted, enforcement of a national bank's compliance with a law that would govern the content or the conditions for conduct of a national bank's Federally-authorized banking business is within the OCC's exclusive purview.
Commenters also asserted that the OCC lacks the authority to prevent states from exercising visitorial authority over national bank operating subsidiaries because they are state-chartered corporations and because section 484 does not specifically refer to operating subsidiaries. Some suggested that a curtailing of state authority over state corporations violates the 10th Amendment to the Constitution.
Pursuant to their authority under 12 U.S.C. 24(Seventh), national banks have long used separately incorporated entities as a means to engage in activities that the bank itself is authorized to conduct. When established in accordance with OCC regulations and approved by the OCC, an operating subsidiary is a Federally-authorized and Federally-licensed means by which a national bank may conduct Federally-authorized activities. Courts have consistently treated operating subsidiaries as equivalent to national banks in determining their powers and status under Federal law, unless Federal law requires otherwise.
As a matter of Federal law, operating subsidiaries conduct their activities subject to the same terms and conditions as apply to the parent bank, including being subject to the exclusive visitorial authority of the OCC.
Our regulations make clear that activities conducted in operating subsidiaries must be permissible for a national bank to engage in directly either as part of, or incidental to, the business of banking.
Courts that have recently considered the issue have confirmed this conclusion. In
Moreover, the Office of Thrift Supervision (OTS) takes the same approach with respect to operating subsidiaries of Federal thrifts that we take for national banks. 12 CFR 559.3(n) of the OTS regulations provides that state law applies to Federal savings associations' operating subsidiaries to the extent that the law applies to the parent thrift. This OTS regulation has been upheld by both Federal and state courts.
Section 7.4006 of our rules already provides that State law applies to national bank operating subsidiaries to the same extent as it applies to the parent bank.
Recent case law also confirms that the final rule does not conflict with the 10th Amendment. In the
A few commenters cite
The essence of the Hopkins case was that Congress had attempted to confer rights on a state-chartered entity that were greater than those conferred by the state, namely a more liberal voting requirement for a conversion. As stated by the
Later, the Court stated “[w]e are not concerned at this time with the applicable rule in situations where the central government is at liberty (
Case law since
This year the U.S. Supreme Court affirmed
Clearly, national bank operating subsidiaries, licensed by the OCC, engaging in activities permissible for their parent national banks and subject to the same terms and conditions are on the same footing for purposes of the 10th Amendment. Given that they, like their parent banks, engage in activities that have a substantial effect on interstate commerce, regulation of the subsidiaries' activities would be within Congress' authority under the 10th Amendment.
Based upon the foregoing discussion and analysis, the OCC has adopted the final rule with certain modifications that do not alter the fundamentals of the rule as proposed. We have amended the language in § 7.4000(a)(3) slightly to simplify it. In addition, we have amended the regulation text in the final rule in § 7.4000(b)(2). This provision no longer makes reference to the specific powers of the courts of justice “to issue orders or writs compelling the production of information or witnesses” since this is implicit. In addition, we have simplified the language which states that the exception for courts of justice does not authorize states or other governmental entities to exercise visitorial powers over national banks.
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise required under section 604 of the RFA is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a short, explanatory statement in the
Pursuant to section 605(b) of the RFA, the OCC hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not needed. The amendments to the regulations simply identify the scope of activities for which the agency's visitorial powers are exclusive and clarify how an exception to such powers applies. These amendments do not impose any new requirements or burdens. As such, they will not result in any adverse economic impact.
The OCC has determined that this final rule is not a significant regulatory action under Executive Order 12866.
Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4 (2 U.S.C. 1532) (Unfunded Mandates Act), requires that an agency prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. The OCC has determined that this final rule will not result in expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more in any one year. Accordingly, this rulemaking is not subject to section 202 of the Unfunded Mandates Act.
Executive Order 13132, entitled “Federalism,” (Order) requires Federal agencies, including the OCC, to certify their compliance with that Order when they transmit to the Office of Management and Budget any draft final regulation that has Federalism implications. Under the Order, a regulation has Federalism implications if it has “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.” In the case of a regulation that has Federalism implications and that preempts state law, the Order imposes certain consultation requirements with state and local officials; requires publication in the preamble of a Federalism summary impact statement; and requires the OCC to make available to the Director of the Office of Management and Budget any written communications submitted by state and local officials. By the terms of the Order, these requirements apply to the extent that they are practicable and permitted by law and, to that extent, must be satisfied before the OCC promulgates a final regulation.
In the proposal, we noted that the regulation may have Federalism implications. It is not clear that the Order applies in situations where an agency is implementing a statute that has preemptive effect. Nevertheless, in formulating the proposal and the final rule, the OCC has adhered to the fundamental Federalism principles and the Federalism policymaking criteria.
Moreover, the OCC has satisfied the requirements set forth in the Order for regulations that have Federalism implications and preempt state law. The steps taken to comply with these requirements are set forth below.
The Order requires a Federalism summary impact statement which addresses the following in addition to the consultation discussed above:
a. There is fundamental disagreement between state and local officials and the OCC regarding the meaning of section 484 as well as the Congressional intent behind the statute. The nature of the disagreement is discussed at length in the materials that precede this Federalism impact statement. For the reasons set forth in those materials, we believe that the language of section 484, its legislative history, and the application of that section by courts lead to the conclusion that the OCC has exclusive visitorial authority to enforce applicable state laws. The concerns of the state and local officials could only be fully met if the OCC were to take a position that is contrary to the express provisions of the statute and judicial precedent. Nevertheless, to respond to some of the issues raised, the language in the final regulation has been refined, and this preamble further explains that the OCC's visitorial powers are exclusive with respect to the Federally-authorized banking business of national banks.
b. Similarly, we fundamentally disagree with the state and local officials about whether this proposal will undermine the dual banking system. As set forth in the preamble, differences in national and state bank powers and in the supervision and regulation of national and state banks are not inconsistent with the dual banking system; rather they are the defining characteristics of it. The dual banking system is universally understood to refer to the chartering and supervision of state-chartered banks by state authorities and the chartering and supervision of national banks by Federal authority, the OCC. Thus, we believe that the final rule preserves, rather than undermines, the dual banking system.
c. Finally, we stand ready to work with the states in the enforcement of applicable laws. The OCC has extended invitations to state Attorneys General and state banking departments to enter into discussions that would lead to a memorandum of understanding about the handling of consumer complaints and the pursuit of remedies, and we remain eager to do so.
We believe the OCC has the resources to enforce applicable laws, as is evidenced by the enforcement actions that have generated hundreds of millions of dollars for consumers in restitution, that have required national banks to disassociate themselves from payday lenders, and that have ordered national banks to stop abusive practices. These actions are listed on the OCC's Web site at
Credit, Insurance, Investments, National banks, Reporting and recordkeeping requirements, Securities, Surety bonds.
12 U.S.C. 1
(a) * * *
(3) Unless otherwise provided by Federal law, the OCC has exclusive visitorial authority with respect to the content and conduct of activities authorized for national banks under Federal law.
(b)
(1)
(i) Inspect the list of shareholders, provided that the official is authorized to assess taxes under state authority (12 U.S.C. 62; this section also authorizes inspection of the shareholder list by shareholders and creditors of a national bank);
(ii) Review, at reasonable times and upon reasonable notice to a bank, the bank's records solely to ensure compliance with applicable state unclaimed property or escheat laws upon reasonable cause to believe that the bank has failed to comply with those laws (12 U.S.C. 484(b));
(iii) Verify payroll records for unemployment compensation purposes (26 U.S.C. 3305(c));
(iv) Ascertain the correctness of Federal tax returns (26 U.S.C. 7602);
(v) Enforce the Fair Labor Standards Act (29 U.S.C. 211); and
(vi) Functionally regulate certain activities, as provided under the Gramm-Leach-Bliley Act, Pub. L. 106-102, 113 Stat. 1338 (Nov. 12, 1999).
(2)
(3)
Office of the Comptroller of the Currency, Treasury.
Final rule.
The Office of the Comptroller of the Currency (OCC) is publishing a final rule amending parts 7 and 34 of our regulations to add provisions clarifying the applicability of state law to national banks' operations. The provisions concerning preemption identify types of state laws that are preempted, as well as the types of state laws that generally are not preempted, with respect to national banks' lending, deposit-taking, and other operations. In tandem with these preemption provisions, we are also adopting supplemental anti-predatory lending standards governing national banks' lending activities.
February 12, 2004.
For questions concerning the final rule, contact Michele Meyer, Counsel, or Mark Tenhundfeld, Assistant Director, Legislative and Regulatory Activities Division, (202) 874-5090.
The OCC is adopting this final rule to specify the types of state laws that do not apply to national banks' lending and deposit taking activities
This final rule also contains a new provision prohibiting the making of any type of consumer loan based predominantly on the bank's realization of the foreclosure value of the borrower's collateral, without regard to the borrower's ability to repay the loan according to its terms. (A consumer loan for this purpose is a loan made for personal, family, or household purposes). This anti-predatory lending standard applies uniformly to all consumer lending activities conducted by national banks, wherever located. A second anti-predatory lending standard in the final rule further specifically prohibits national banks from engaging in practices that are unfair and deceptive under the Federal Trade Commission Act (FTC Act)
The provisions concerning preemption of state laws are contained in 12 CFR part 34, which governs national banks' real estate lending, and in three new sections to part 7 added by this final rule: § 7.4007 regarding deposit-taking activities; § 7.4008 regarding non-real estate lending
On August 5, 2003, the OCC published a notice of proposed rulemaking (NPRM or proposal) in the
Part 34 of our regulations implements 12 U.S.C. 371, which authorizes national banks to engage in real estate lending subject to “such restrictions and requirements as the Comptroller of the Currency may prescribe by regulation or order.” Prior to the adoption of this final rule, subpart A of part 34 explicitly preempted state laws concerning five enumerated areas with respect to national banks and their operating subsidiaries.
Pursuant to our authority under 12 U.S.C. 93a and 371, we proposed to amend § 34.4(a) and (b) to provide a more extensive enumeration of the types of state law restrictions and requirements that do, and do not, apply to the real estate lending activities of national banks. To the five types of state laws already listed in the regulations, proposed § 34.4(a) added a fuller, but non-exhaustive, list of the types of state laws that are preempted, many of which have already been found to be preempted by the Federal courts or OCC opinions. As also explained in the preamble to the NPRM, consistent with the applicable Federal judicial precedent, other types of state laws that wholly or partially obstruct the ability of national banks to fully exercise their real estate lending powers might be identified and, if so, preemption of those laws would be addressed by the OCC on a case-by-case basis.
We also noted in the preamble that the nature and scope of the statutory authority to set “requirements and restrictions” on national banks' real estate lending may enable the OCC to “occupy the field” of the regulation of those activities. We invited comment on whether our regulations, like those of the Office of Thrift Supervision (OTS),
Under proposed § 34.4(b), certain types of state laws are not preempted and would apply to national banks to the extent that they do not significantly affect the real estate lending operations of national banks or are otherwise consistent with national banks' Federal authority to engage in real estate lending.
The proposal retained the general rule stated in § 34.3 that national banks may “make, arrange, purchase, or sell loans or extensions of credit, or interests therein, that are secured by liens on, or interests in, real estate, subject to terms, conditions, and limitations prescribed by the Comptroller of the Currency by regulation or order.” That provision was unchanged, other than by designating it as paragraph (a).
The proposal added a new paragraph (b), prescribing an explicit, safety and soundness-based anti-predatory lending standard to the general statement of authority concerning lending. Proposed § 34.3(b) prohibited a national bank from making a loan subject to 12 CFR part 34 based predominantly on the foreclosure value of the borrower's collateral, rather than on the borrower's repayment ability, including current and expected income, current obligations, employment status, and other relevant financial resources.
This standard augments the other standards that already apply to national bank real estate lending under Federal laws. These other standards include those contained in the OCC's Advisory Letters on predatory lending;
As a matter of Federal law, national bank operating subsidiaries conduct their activities subject to the same terms and conditions as apply to the parent banks, except where Federal law provides otherwise.
The proposal also added three new sections to part 7: § 7.4007 regarding deposit-taking activities, § 7.4008 regarding non-real estate lending activities, and § 7.4009 regarding other national bank operations. The structure of the proposed amendments was the same for §§ 7.4007 and 7.4008 and was similar for § 7.4009. For §§ 7.4007 and 7.4008, the proposal first set out a statement of the authority to engage in the activity. Second, the proposal stated that state laws that obstruct, in whole or in part, a national bank's exercise of the Federally-authorized power in question are not applicable, and listed several types of state laws that are preempted. As with the list of preempted state laws set forth in the proposed amendments to part 34, this list reflects judicial precedents and OCC interpretations concerning the types of state laws that can obstruct the exercise of national banks' deposit-taking and non-real estate lending powers. Finally, the proposal listed several types of state laws that, as a general matter, are not preempted.
As with the proposed amendments to part 34, the proposed amendment to part 7 governing non-real estate lending included a safety and soundness-based anti-predatory lending standard. As proposed, § 7.4008(b) stated that a national bank shall not make a loan described in § 7.4008 based predominantly on the foreclosure value of the borrower's collateral, rather than on the borrower's repayment ability, including current and expected income, current obligations, employment status, and other relevant financial resources. The preamble to the NPRM pointed out that non-real estate lending also is subject to section 5 of the FTC Act.
For proposed § 7.4009, as with proposed §§ 7.4007 and 7.4008, the NPRM first stated that a national bank could exercise all powers authorized to it under Federal law. To address questions about the extent to which state law may permissibly govern powers or activities that have not been addressed by Federal court precedents or OCC opinions or orders, proposed new § 7.4009(b) provided that state laws do not apply to national banks if they obstruct, in whole or in part, a national bank's exercise of powers granted to it under Federal law. Next, proposed § 7.4009(c) noted that the provisions of this section apply to any national bank power or aspect of a national bank's operation that is not otherwise covered by another OCC regulation that specifically addresses the applicability of state law. Finally, the proposal listed several types of state laws that, as a general matter, are not preempted.
As with the proposed changes to part 34, and for the same reasons, the proposal's changes to part 7 would be applicable to both national banks and their operating subsidiaries by virtue of an existing OCC regulation.
The OCC received approximately 2,600 comments, most of which came from the following groups:
Many realtor comments also raised arguments concerning the impact of this rulemaking on consumers and market competition and some argued that preemption of state licensing requirements related to real estate
Many of the supporting commenters also urged the adoption of the proposal for the reasons set forth in its preamble. These commenters agreed with the OCC's assertion in the preamble that banks with customers in more than one state “face uncertain compliance risks and substantial additional compliance burdens and expense that, for practical purposes, materially impact their ability to offer particular products and services.”
As the courts have recognized, Federal law authorizes the OCC to issue rules that preempt state law in furtherance of our responsibility to ensure that national banks are able to operate to the full extent authorized under Federal law, notwithstanding inconsistent state restrictions, and in furtherance of their safe and sound operations.
Federal law is the exclusive source of all of national banks' powers and authorities. Key to these powers is the clause set forth at 12 U.S.C. 24(Seventh) that permits national banks to exercise “all such incidental powers as shall be necessary to carry on the business of banking.” This flexible grant of authority furthers Congress's long-range goals in establishing the national banking system, including financing commerce, establishing private depositories, and generally supporting economic growth and development nationwide.
The OCC is charged with the fundamental responsibility of ensuring that national banks operate on a safe and sound basis, and that they are able to do so, if they choose, to the full extent of their powers under Federal law. This responsibility includes enabling the national banking system to operate as authorized by Congress, consistent with the essential character of a national banking system and without undue confinement of their powers. Federal law gives the OCC broad rulemaking authority in order to fulfill these responsibilities. Under 12 U.S.C. 93a, the OCC is authorized “to prescribe rules and regulations to carry out the responsibilities of the office”
In recent years, the financial services marketplace has undergone profound changes. Markets for credit (both consumer and commercial), deposits, and many other financial products and services are now national, if not international, in scope. These changes are the result of a combination of factors, including technological innovations, the erosion of legal barriers, and an increasingly mobile society.
Technology has expanded the potential availability of credit and made possible virtually instantaneous credit decisions. Mortgage financing that once took weeks, for example, now can take only hours. Consumer credit can be obtained at the point of sale at retailers and even when buying a major item such as a car. Consumers can shop for investment products and deposits on-line. With respect to deposits, they can compare rates and duration of a variety of deposit products offered by financial institutions located far from where the consumer resides.
Changes in applicable law also have contributed to the expansion of markets for national banks and their operating subsidiaries. These changes have affected both the type of products that may be offered and the geographic region in which banks—large and small—may conduct business. As a result of these changes, banks may branch across state lines and offer a broader array of products than ever before. An even wider range of
Our modern society is also highly mobile. Forty million Americans move annually, according to a recent Congressional report issued in connection with enactment of the Fair and Accurate Credit Transactions Act of 2003.
These developments highlight the significance of being able to conduct a banking business pursuant to consistent, national standards, regardless of the location of a customer when he or she first becomes a bank customer or the location to which the customer may move
These concerns have been exacerbated recently, by increasing efforts by states and localities to apply state and local laws to bank activities. As we have learned from our experience supervising national banks, from the inquiries received by the OCC's Law Department, by the extent of litigation in recent years over these state efforts, and by the comments we received on the proposal, national banks' ability to conduct operations to the full extent authorized by Federal law has been curtailed as a result.
Commenters noted that the variety of state and local laws that have been enacted in recent years—including laws regulating fees, disclosures, conditions on lending, and licensing—have created higher costs and increased operational challenges.
As previously noted, the elimination of legal and other barriers to interstate banking and interstate financial service operations has led a number of banking organizations to operate, in multi-state metropolitan statistical areas, and on a multi-state or nationwide basis, exacerbating the impact of the overlay of state and local standards and requirements on top of the Federal standards and OCC supervisory requirements already applicable to national bank operations. When these multi-jurisdictional banking organizations are subject to regulation by each individual state or municipality in which they conduct operations, the problems noted earlier are compounded.
Even the efforts of a single state to regulate the operations of a national bank operating only within that state can have a detrimental effect on that bank's operations and consumers. As we explained in our recent preemption determination and order responding to National City Bank's inquiry concerning the Georgia Fair Lending Act (GFLA),
When national banks are unable to operate under uniform, consistent, and predictable standards, their business suffers, which negatively affects their safety and soundness. The application of multiple, often unpredictable, different state or local restrictions and requirements prevents them from operating in the manner authorized under Federal law, is costly and burdensome, interferes with their ability to plan their business and manage their risks, and subjects them to uncertain liabilities and potential exposure. In some cases, this deters them from making certain products available in certain jurisdictions.
The OCC therefore is issuing this final rule in furtherance of its responsibility to enable national banks to operate to the full extent of their powers under Federal law, without interference from inconsistent state laws, consistent with the national character of the national banking system, and in furtherance of their safe and sound operations. The final rule does not entail any new powers for national banks or any expansion of their existing powers. Rather, we intend only to ensure the soundness and efficiency of national banks' operations by making clear the standards under which they do business.
The OCC has ample authority to provide, by regulation, that types of state laws are not applicable to national banks. As mentioned earlier, 12 U.S.C. 93a grants the OCC comprehensive rulemaking authority to further its responsibilities, stating that—
Except to the extent that authority to issue such rules and regulations has been expressly and exclusively granted to another regulatory agency, the Comptroller of the Currency is authorized to prescribe rules and regulations to carry out the responsibilities of the office * * *.
This language is significantly broader than that customarily used to convey rulemaking authority to an agency, which is typically focused on a particular statute. This was recognized, some 20 years ago, by the United States Court of Appeals for the D.C. Circuit in
On appeal, the CSBS asserted that 12 U.S.C. 93a grants the OCC authority to issue only “housekeeping” procedural regulations. In support of this argument, the CSBS cited a remark from the legislative history of 12 U.S.C. 93a by Senator Proxmire that 12 U.S.C. 93a “carries with it no new authority to confer on national banks powers which they do not have under existing law.” CSBS also cited a statement in the conference report that 12 U.S.C. 93a “carries no authority [enabling the Comptroller] to permit otherwise impermissible activities
The Court of Appeals rejected the CSBS's contentions concerning the proper interpretation of 12 U.S.C. 93a. The Court of Appeals explained first that the challenged regulations (like this final rule) did not confer any new powers on national banks. Moreover,
As the “specific reference” to the McFadden and Glass-Steagall Acts indicates, the “impermissible activities” which the Comptroller is not empowered to permit are activities that are impermissible under federal, not state, law.
It bears repeating that the entire legislative scheme is one that contemplates the operation of state law only in the absence of federal law and where such state law does not conflict with the policies of the National Banking Act.
The authority under 12 U.S.C. 93a described by the court in
Under 12 U.S.C. 371, the OCC has the additional and specific authority to provide that the specified types of laws relating to national banks' real estate lending activities are preempted. As we have described and as recognized in
[a]ny national banking association may make, arrange, purchase or sell loans or extensions of credit secured by liens on interests in real estate, subject to section 1828(o) of this title and such restrictions and requirements as the Comptroller of the Currency may prescribe by regulation or order.
The language and history of 12 U.S.C. 371 confirm the real estate lending powers of national banks and that only the OCC “ subject to other applicable Federal law “ and not the states may impose restrictions or requirements on national banks’ exercise of those powers. The Federal powers conferred by 12 U.S.C. 371 are subject
This conclusion is consistent with the fact that national bank real estate lending authority has been extensively regulated at the
In 1982, Congress removed these “rigid statutory limitations”
Thus, the history of national banks' real estate lending activities under 12 U.S.C. 371 is one of extensive Congressional involvement gradually giving way to a streamlined approach in which Congress has delegated broad rulemaking authority to the Comptroller. The two versions of 12 U.S.C. 371—namely, the lengthy and prescriptive approach prior to 1982 and the more recent statement of broad authority qualified only by reference to Federal law —may be seen as evolving articulations of the same idea.
State laws are preempted by Federal law, and thus rendered invalid with respect to national banks, by operation of the Supremacy Clause of the U.S. Constitution.
In
The Supreme Court noted in
In defining the pre-emptive scope of statutes and regulations granting a power to national banks, these cases take the view that normally Congress would not want States to forbid, or impair significantly, the exercise of a power that Congress explicitly granted. To say this is not to deprive States of the power to regulate national banks, where (unlike here) doing so does not prevent or significantly interfere with the national bank's exercise of its powers. See,
The variety of formulations quoted by the Court—“unlawfully encroach,” “hamper,” “interfere with or impair national banks’ efficiency”—defeats any suggestion that any one phrase constitutes the exclusive standard for preemption. As the Supreme Court explained in
There is not—and from the very nature of the problem there cannot be—any rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress. This Court, in considering the validity of state laws in the light of treaties or federal laws touching the same subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference.
Thus, in
We have adopted in this final rule a statement of preemption principles that is consistent with the various formulations noted earlier. The phrasing used in the final rule—obstruct,
In describing the proposal, we invited comment on whether it would be appropriate to assert occupation of the entire field of real estate lending. Some commenters strongly urged that we do so, and that we go beyond real estate lending to cover other lending and deposit-taking activities as well. Upon further consideration of this issue and
1. Section 34.3(a). The final rule retains the statement of national banks' real estate lending authority, now designated as § 34.3(a), that national banks may “make, arrange, purchase, or sell loans or extensions of credit, or interests therein, that are secured by liens on, or interests in, real estate (real estate loans), subject to 12 U.S.C. 1828(o) and such restrictions and requirements as the Comptroller of the Currency may prescribe by regulation or order.”
2. Section 34.3(b). New § 34.3(b) adds an explicit safety and soundness-derived anti-predatory lending standard to the general statement of authority concerning lending. Many bank commenters voiced concern that the proposed anti-predatory lending standard, by prohibiting a national bank from making a loan based predominantly on the foreclosure value of a borrower's collateral without regard to the borrower's repayment ability, would also prohibit a national bank from engaging in legitimate, non-predatory lending activities. These commenters noted that reverse mortgage, small business, and high net worth loans are often made based on the value of the collateral.
We have revised the anti-predatory lending standard in the final rule to clarify that it applies to consumer loans only, (
Thus, we have revised the anti-predatory lending standard so that it focuses on consumer loans and permits a national bank to use a variety of reasonable methods to determine a borrower's ability to repay, including, for example, the borrower's current and expected income, current and expected cash flows, net worth, other relevant financial resources, current financial obligations, employment status, credit history, or other relevant factors.
Several commenters urged the OCC to expressly affirm that a national bank's lending practices must be conducted in conformance with section 5 of the FTC Act, which makes unlawful “unfair or deceptive acts or practices” in interstate commerce,
3.
The final rule revises slightly the introductory clause used in proposed § 34.4(a) in order to conform this section more closely to the amended sections of part 7 discussed later in this preamble. Thus, the final rule provides: “Except where made applicable by Federal law, state laws that obstruct, impair, or condition a national bank's ability to fully exercise its Federally authorized real estate lending powers do not apply to national banks.” The final rule then expands the current list of the types of state law restrictions and requirements that are not applicable to national banks.
Many of the supporting commenters requested that the final rule clarify the extent to which particular state or local laws that were not included in the proposal are preempted. For example, these commenters suggested that the final rule address particular state laws imposing various limitations on mortgage underwriting and servicing.
We decline to address most of these suggestions with the level of specificity requested by the commenters. Identifying state laws in a more generic way avoids the impression that the regulations only cover state laws that appear on the list. The list of the types of preempted state laws is not intended to be exhaustive, and we retain the ability to address other types of state laws by order on a case-by-case basis, as appropriate, to make determinations whether they are preempted under the applicable standards.
4.
One category of state law included in the proposed list of state laws generally not preempted was “debt collection.” Consistent with Supreme Court precedents addressing this type of state law,
The final rule adds three new sections to part 7: § 7.4007 regarding deposit-taking activities, § 7.4008 regarding non-real estate lending activities, and § 7.4009 regarding national bank operations. The structure of the amendments is the same for §§ 7.4007 and 7.4008 and is similar for § 7.4009.
For § 7.4007, the final rule first sets out a statement of the authority to engage in the activity. Second, the final rule notes that state laws that obstruct, impair, or condition a national bank's ability to fully exercise the power in question are not applicable, and lists several types of state laws that are preempted. Types of state laws that are generally preempted under § 7.4007 include state requirements concerning abandoned and dormant accounts, checking accounts, disclosure requirements, funds availability, savings account orders of withdrawal, state licensing or registration requirements, and special purpose savings services. Finally, the final rule lists types of state laws that, as a general matter, are not preempted. Examples of these laws include state laws concerning contract, rights to collect debt, tort, zoning, and property transfers. These lists are not intended to be exhaustive, and the OCC retains the ability to address other types of state laws on a case-by-case basis to make preemption determinations under the applicable standards.
For § 7.4008, the final rule also sets out a statement of the authority to engage in the activity (non-real estate lending), notes that state laws that obstruct, impair, or condition a national bank's ability to fully exercise this power are not applicable, and lists several types of state laws that are, or are not, preempted. Section 7.4008 also includes a safety and soundness-based anti-predatory lending standard. Final § 7.4008(b) states that “[a] national bank shall not make a consumer loan subject to this § 7.4008 based predominantly on the bank's realization of the foreclosure or liquidation value of the borrower's collateral, without regard to the borrower's ability to repay the loan according to its terms. A bank may use any reasonable method to determine a borrower's ability to repay, including, for example, the borrower's current and expected income, current and expected cash flows, net worth, other relevant financial resources, current financial obligations, employment status, credit history, or other relevant factors.” Separately, § 7.4008(c) also includes a statement that a national bank shall not engage in unfair or deceptive practices within the meaning of section 5 of the FTC Act and regulations promulgated thereunder in connection with making non-real estate related loans. The standards set forth in § 7.4008(b) and (c), plus an array of Federal consumer protection standards,
In § 7.4009, the final rule first states that national banks may exercise all powers authorized to them under Federal law.
The OCC's regulations adopted in this final rule address the applicability of state law with respect to a number of specific types of activities. The question may persist, however, about the extent to which state law may permissibly govern powers or activities that have not been addressed by Federal court precedents or OCC opinions or orders. Accordingly, as noted earlier, new § 7.4009 provides that state laws do not apply to national banks if they obstruct, impair, or condition a national bank's ability to fully exercise the powers authorized to it under Federal law, including the content of those activities and the manner in which and standards whereby they are conducted.
As explained previously, in some circumstances, of course, Federal law directs the application of state standards to a national bank. The wording of § 7.4009 reflects that a Federal statute may require the application of state
As a matter of Federal law, national bank operating subsidiaries conduct their activities under a Federal license, subject to the same terms and conditions as apply to the parent banks, except where Federal law provides otherwise.
The OCC shares the view of the commenters that predatory and abusive lending practices are inconsistent with national objectives of encouraging home ownership and community revitalization, and can be devastating to individuals, families, and communities. We will not tolerate such practices by national banks and their operating subsidiaries. Our Advisory Letters on predatory lending,
Advisory Letters 2003-2, which addresses loan originations, and 2003-3, which addresses loan purchases and the use of third party loan brokers, contain the most comprehensive supervisory standards ever published by any Federal financial regulatory agency to address predatory and abusive lending practices and detail steps for national banks to take to ensure that they do not engage in such practices. As explained in the Advisory Letters, if the OCC has evidence that a national bank has engaged in abusive lending practices, we will review those practices not only to determine whether they violate specific provisions of law such as the Homeowners Equity Protection Act of 1994 (HOEPA), the Fair Housing Act, or the Equal Credit Opportunity Act, but also to determine whether they involve unfair or deceptive practices that violate the FTC Act. Indeed, several practices that we identify as abusive in our Advisory Letters—such as equity stripping, loan flipping, and the refinancing of special subsidized mortgage loans that originally contained terms favorable to the borrower—generally can be found to be unfair or deceptive practices that violate the FTC Act.
Moreover, our enforcement record, including the OCC's pioneering actions using the FTC Act to address consumer abuses that were not specifically prohibited by regulation, demonstrates our commitment to keeping abusive practices out of the national banking system. For example,
Most recently, on November 7, 2003, the OCC entered into a consent order with Clear Lake National Bank that requires the bank to reimburse fees and interest charged to consumers in a series of abusive home equity loans. More than $100,000 will be paid to 30 or more borrowers. This is the first case brought by a Federal regulator under the FTC Act that cites the unfair nature of the terms of the loan. The OCC also found that the loans violated HOEPA, the Truth in Lending Act, and Real Estate Settlement Procedures Act.
The OCC also has moved aggressively against national banks engaged in payday lending programs that involved consumer abuses. Specifically, we concluded four enforcement actions against national banks that had entered into contracts with payday lenders for loan originations, and in each case ordered the bank to terminate the relationship with the payday lender.
Other than these isolated incidences of abusive practices that have triggered the OCC's aggressive supervisory response, evidence that national banks are engaged in predatory lending practices is scant. Based on the absence of such information—from third parties, our consumer complaint database, and our supervisory process—we have no reason to believe that such practices are occurring in the national banking system to any significant degree. Although several of the commenters suggested this conclusion is implausible given the significant share of the lending market occupied by national banks, this observation is consistent with an extensive study of predatory lending conducted by the Department of Housing and Urban Development (HUD) and the Treasury Department,
banks, thrifts, and credit unions that are subject to extensive oversight and regulation * * *. The subprime mortgage and finance companies that dominate mortgage lending in many low-income and minority communities, while subject to the same consumer protection laws, are not subject to as much federal oversight as their prime market counterparts—who are largely federally-supervised banks, thrifts, and credit unions. The absence of such accountability may create an environment where predatory practices flourish because they are unlikely to be detected.
Departments of Housing and Urban Development and the Treasury, “Curbing Predatory Home Mortgage Lending: A Joint Report” 17-18 (June 2000),
In addition, the report found that a significant source of abusive lending practices is non-regulated mortgage brokers and similar intermediaries who, because they “do not actually take on the credit risk of making the loan, * * * may be less concerned about the loan's ultimate repayment, and more concerned with the fee income they earn from the transaction.”
Less than one year ago, nearly two dozen State Attorneys General signed a brief in litigation that reached the same conclusion. That case involved a revised regulation issued by the Office of Thrift Supervision to implement the Alternative Mortgage Transaction Parity Act (AMTPA). The revised regulation seeks to distinguish between Federally supervised thrift institutions and non-bank mortgage lenders and makes non-bank mortgage lenders subject to state law restrictions on prepayment penalties and late fees. In
Based on consumer complaints received, as well as investigations and enforcement actions undertaken by the Attorneys General, predatory lending abuses are largely confined to the subprime mortgage lending market and to
It is relevant for purposes of this final rule that the preemption regulations adopted by the OCC are substantially identical to the preemption regulations of the OTS that have been applicable to Federal thrifts for a number of years. It does not appear from public commentary—nor have the state officials indicated—that OTS preemption regulations have undermined the protection of customers of Federal thrifts. In their brief in the OTS litigation described above, the State Attorneys General referenced “the burdens of federal supervision,” in concluding that there “clearly is a substantial basis for OTS's distinction”
These considerations are equally applicable in the context of national banks, and were recognized,
It is true that most complaints and state enforcement actions involving mortgage lending practices have not been directed at banks. However, most major subprime mortgage lenders are now subsidiaries of bank holding companies, (
The OCC is firmly committed to assuring that abusive practices—whether in connection with mortgage lending or other national bank activities—continue to have no place in the national banking system.
This final rule takes effect 30 days after the date of its publication in the
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise required under section 604 of the RFA is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a short, explanatory statement in the
Pursuant to section 605(b) of the RFA, the OCC hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not needed. The amendments to the regulations identify the types of state laws that are preempted, as well as the types of state laws that generally are not preempted, in the context of national bank lending, deposit-taking, and other activities. These amendments simply provide the OCC's analysis and do not impose any new requirements or burdens. As such, they will not result in any adverse economic impact.
The OCC has determined that this final rule is not a significant regulatory action under Executive Order 12866.
Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4 (2 U.S.C. 1532) (Unfunded Mandates Act), requires that an agency prepare a budgetary impact statement
Executive Order 13132, entitled “Federalism” (Order), requires Federal agencies, including the OCC, to certify their compliance with that Order when they transmit to the Office of Management and Budget any draft final regulation that has Federalism implications. Under the Order, a regulation has Federalism implications if it has “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.” In the case of a regulation that has Federalism implications and that preempts state law, the Order imposes certain consultation requirements with state and local officials; requires publication in the preamble of a Federalism summary impact statement; and requires the OCC to make available to the Director of the Office of Management and Budget any written communications submitted by state and local officials. By the terms of the Order, these requirements apply to the extent that they are practicable and permitted by law and, to that extent, must be satisfied before the OCC promulgates a final regulation.
In the proposal, we noted that the regulation may have Federalism implications. Therefore, in formulating the proposal and the final rule, the OCC has adhered to the fundamental Federalism principles and the Federalism policymaking criteria. Moreover, the OCC has satisfied the requirements set forth in the Order for regulations that have Federalism implications and preempt state law. The steps taken to comply with these requirements are set forth below.
In addition to consultation, the Order requires a Federalism summary impact statement that addresses the following:
a. There is fundamental disagreement between state and local officials and the OCC regarding preemption in the national bank context. For the reasons set forth in the materials that precede this Federalism impact statement, we believe that this final rule is necessary to enable national banks to operate to the full extent of their powers under Federal law, and without interference from inconsistent state laws; consistent with the national character of the national banks; and in furtherance of their safe and sound operations. We also believe that this final rule has ample support in statute and judicial precedent. The concerns of the state and local officials could only be fully met if the OCC were to take a position that is contrary to Federal law and judicial precedent. Nevertheless, to respond to some of the issues raised, the language in this final regulation has been refined, and this preamble further explains the standards used to determine when preemption occurs and the criteria for when state laws generally would
b. Similarly, we fundamentally disagree with the state and local officials about whether this final rule will undermine the dual banking system. As discussed in the OCC's visitorial powers rulemaking also published today in the
c. Finally, we stand ready to work with the states in the enforcement of applicable laws. The OCC has extended invitations to state Attorneys General and state banking departments to enter into discussions that would lead to a memorandum of understanding about the handling of consumer complaints and the pursuit of remedies, and we remain eager to do so. Moreover, as discussed in the preamble, we believe the OCC has the resources to enforce applicable laws, as is evidenced by the enforcement actions that have generated hundreds of millions of dollars for consumers in restitution, that have required national banks to disassociate themselves from payday lenders, and that have ordered national banks to stop abusive practices. Thus, the OCC has ample legal authority and resources to ensure that consumers are adequately protected.
Credit, Insurance, Investments, National banks, Reporting and recordkeeping requirements, Securities, Surety bonds.
Mortgages, National banks, Real estate appraisals, Real estate lending
12 U.S.C. 1
(a)
(b)
(2) A national bank may exercise its deposit-taking powers without regard to state law limitations concerning:
(i) Abandoned and dormant accounts;
(ii) Checking accounts;
(iii) Disclosure requirements;
(iv) Funds availability;
(v) Savings account orders of withdrawal;
(vi) State licensing or registration requirements (except for purposes of service of process); and
(vii) Special purpose savings services;
(c)
(1) Contracts;
(2) Torts;
(3) Criminal law;
(4) Rights to collect debts;
(5) Acquisition and transfer of property;
(6) Taxation;
(7) Zoning; and
(8) Any other law the effect of which the OCC determines to be incidental to the deposit-taking operations of national banks or otherwise consistent with the powers set out in paragraph (a) of this section.
(a)
(b)
(c)
(d)
(2) A national bank may make non-real estate loans without regard to state law limitations concerning:
(i) Licensing, registration (except for purposes of service of process), filings, or reports by creditors;
(ii) The ability of a creditor to require or obtain insurance for collateral or other credit enhancements or risk mitigants, in furtherance of safe and sound banking practices;
(iii) Loan-to-value ratios;
(iv) The terms of credit, including the schedule for repayment of principal and interest, amortization of loans, balance, payments due, minimum payments, or term to maturity of the loan, including the circumstances under which a loan may be called due and payable upon the passage of time or a specified event external to the loan;
(v) Escrow accounts, impound accounts, and similar accounts;
(vi) Security property, including leaseholds;
(vii) Access to, and use of, credit reports;
(viii) Disclosure and advertising, including laws requiring specific statements, information, or other content to be included in credit application forms, credit solicitations, billing statements, credit contracts, or other credit-related documents;
(ix) Disbursements and repayments; and
(x) Rates of interest on loans.
(e)
(1) Contracts;
(2) Torts;
(3) Criminal law;
(4) Rights to collect debts;
(5) Acquisition and transfer of property;
(6) Taxation;
(7) Zoning; and
(8) Any other law the effect of which the OCC determines to be incidental to the non-real estate lending operations of national banks or otherwise consistent with the powers set out in paragraph (a) of this section.
(a)
(b)
(c)
(2) State laws on the following subjects are not inconsistent with the powers of national banks and apply to national banks to the extent that they only incidentally affect the exercise of national bank powers:
(i) Contracts;
(ii) Torts;
(iii) Criminal law
(iv) Rights to collect debts;
(v) Acquisition and transfer of property;
(vi) Taxation;
(vii) Zoning; and
(viii) Any other law the effect of which the OCC determines to be incidental to the exercise of national bank powers or otherwise consistent with the powers set out in paragraph (a) of this section.
12 U.S.C. 1
(b) A national bank shall not make a consumer loan subject to this subpart based predominantly on the bank's realization of the foreclosure or liquidation value of the borrower's collateral, without regard to the borrower's ability to repay the loan according to its terms. A bank may use any reasonable method to determine a borrower's ability to repay, including, for example, the borrower's current and expected income, current and expected cash flows, net worth, other relevant financial resources, current financial obligations, employment status, credit history, or other relevant factors.
(c) A national bank shall not engage in unfair or deceptive practices within the meaning of section 5 of the Federal Trade Commission Act, 15 U.S.C. 45(a)(1), and regulations promulgated thereunder in connection with loans made under this part.
(a) Except where made applicable by Federal law, state laws that obstruct, impair, or condition a national bank's ability to fully exercise its Federally authorized real estate lending powers do not apply to national banks. Specifically, a national bank may make real estate loans under 12 U.S.C. 371 and § 34.3, without regard to state law limitations concerning:
(1) Licensing, registration (except for purposes of service of process), filings, or reports by creditors;
(2) The ability of a creditor to require or obtain private mortgage insurance, insurance for other collateral, or other credit enhancements or risk mitigants, in furtherance of safe and sound banking practices;
(3) Loan-to-value ratios;
(4) The terms of credit, including schedule for repayment of principal and interest, amortization of loans, balance, payments due, minimum payments, or term to maturity of the loan, including the circumstances under which a loan may be called due and payable upon the passage of time or a specified event external to the loan;
(5) The aggregate amount of funds that may be loaned upon the security of real estate;
(6) Escrow accounts, impound accounts, and similar accounts;
(7) Security property, including leaseholds;
(8) Access to, and use of, credit reports;
(9) Disclosure and advertising, including laws requiring specific statements, information, or other content to be included in credit application forms, credit solicitations, billing statements, credit contracts, or other credit-related documents;
(10) Processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages;
(11) Disbursements and repayments;
(12) Rates of interest on loans;
(13) Due-on-sale clauses except to the extent provided in 12 U.S.C. 1701j-3 and 12 CFR part 591; and
(14) Covenants and restrictions that must be contained in a lease to qualify the leasehold as acceptable security for a real estate loan.
(b) State laws on the following subjects are not inconsistent with the real estate lending powers of national banks and apply to national banks to the extent that they only incidentally affect the exercise of national banks' real estate lending powers:
(1) Contracts;
(2) Torts;
(3) Criminal law;
(4) Homestead laws specified in 12 U.S.C. 1462a(f);
(5) Rights to collect debts;
(6) Acquisition and transfer of real property;
(7) Taxation;
(8) Zoning; and
(9) Any other law the effect of which the OCC determines to be incidental to the real estate lending operations of national banks or otherwise consistent with the powers and purposes set out in § 34.3(a).
Internal Revenue Service (IRS), Treasury.
Corrections to final and temporary regulations.
This document corrects final and temporary regulations (TD 9048) published in the
This document is effective on March 14, 2003.
Aimee K. Meacham, (202) 622-7530 (not a toll-free number).
The final and temporary regulations (TD 9048) that are the subject of these corrections are under section 1502 of the Internal Revenue Code.
As published, the final and temporary regulations (TD 9048) contain errors that may prove to be misleading and are in need of clarification. In particular, this document supplies text clarifying § 1.1502-35T(c)(5)(i).
Coast Guard, DHS.
Final rule.
The Coast Guard is changing the regulation governing the operation of the CSX Railroad Swingbridge, across Rice Creek, mile 0.8, Putnam County, Florida. This rule requires the bridge to open on signal during the day and to open with a 24-hour advance notice at all other times. This rule will meet the reasonable needs of navigation on Rice Creek.
This rule is effective February 12, 2004.
Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket [CGD07-03-094] and are available for inspection or copying at Commander (obr), Seventh Coast Guard District, 909 SE 1st Avenue, Miami, Florida 33131 between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Mr. Barry Dragon, Project Manager, Seventh Coast Guard District, Bridge Branch, (305) 415-6743.
On August 11, 2003, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations; Rice Creek, Putnam County, Florida in the
The CSX Railroad Swingbridge across Rice Creek, mile 0.8, is a railroad swingbridge with a vertical clearance of 2 feet at mean high water and a horizontal clearance of 30 feet. The current operating regulations published in 33 CFR 117.5 require the bridge to open on signal at all times. This regulatory action will ease the burden of having a full time bridge tender on site. For the last three years, requests to open the bridge have been for intermittent tug and barge traffic between 4 p.m. and 8 a.m. The CSX Railroad and the tug and barge companies that pass through the bridge service the same customer upstream from the bridge and are able to coordinate their operating schedules for timely bridge openings. This rule will continue to meet the reasonable needs of navigation for this bridge.
We received no comments on the notice of proposed rulemaking (NPRM).
This rule requires the bridge to open on signal from 8 a.m. to 4 p.m. From 4:01 p.m. to 7:59 a.m., the bridge need open only with a 24-hour advance notice by calling (800) 232-0142. This schedule will meet the reasonable needs of navigation.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).
We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary, because the rule will only affect a small percentage of vessels that travel through this bridge and after “on signal” hours openings are available with 24-hour advance notice.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. We offered small businesses, organizations, or governmental jurisdictions affected by this rule or with questions concerning its provisions or options for compliance, to contact the person listed in
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Although this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in the preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order, because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a statement of Energy Effects under Executive Order 13211.
We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.
Bridges.
33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); Section 117.255 also issued under authority of Pub. L. 102-587, 106 Stat. 5039.
The CSX Railroad Swingbridge, mile 0.8, in Putnam County, shall open on signal from 8 a.m. to 4 p.m., daily. From 4:01 p.m. to 7:59 a.m., daily, the bridge shall open with a 24-hour advance notice to CSX at 1-800-232-0142.
Environmental Protection Agency (EPA).
Final rule.
The EPA is announcing the approval of a revision to the maintenance plan prepared by Kansas to maintain the 1-hour national ambient air quality standard (NAAQS) for ozone in the Kansas portion of the Kansas City maintenance area through the year 2012. This plan is applicable to Johnson and Wyandotte Counties. This revision is required by the Clean Air Act. A similar final rulemaking pertaining to the Missouri portion of the Kansas City maintenance area is being done in
This rule is effective on February 12, 2004.
Leland Daniels, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101, or by e-mail at
Throughout this document whenever “we”, “us”, or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:
What is a SIP?
What is the Federal approval process for a SIP?
What does Federal approval of a state regulation mean to me?
What is being addressed in this document?
Have the requirements for approval of a SIP revision been met?
What action is EPA taking?
Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.
Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.
Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.
In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.
Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.
All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.
Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.
For the past ten years, Kansas has had a plan in place to maintain the 1-hour ozone standard in the Kansas portion of the Kansas City maintenance area through 2002. The CAA requires that the maintenance plan be revised. Kansas' submittal of January 9, 2003, contained a revised plan that describes what will be done during the next ten-year period to maintain the ozone standard in the Kansas portion of the Kansas City maintenance area through 2012.
Our proposed approval of Kansas' revised maintenance plan for the Kansas portion of the Kansas City 1-hour ozone maintenance area was published September 16, 2003 (68 FR 54190). No comments regarding the proposed approval were received.
The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained in this final rule and in more detail in the technical support document which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
Our review of the material submitted indicates that the state has revised the maintenance plan in accordance with the requirements of the CAA. A detailed discussion of our rationale for this determination is contained in the September 16, 2003, proposal. For the reasons stated in the proposal, we are fully approving Kansas' revised maintenance plan for maintaining the 1-hour ozone standard for the second ten-year period in the Kansas portion of the Kansas City maintenance area.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 15, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
The EPA is announcing the approval of a revision to the maintenance plan prepared by Missouri to maintain the 1-hour national ambient air quality standard (NAAQS) for ozone in the Missouri portion of the Kansas City maintenance area through the year 2012. This maintenance plan is applicable to Clay, Jackson and Platte Counties. This revision is required by the Clean Air Act. A similar final action pertaining to the Kansas portion of the Kansas City maintenance area is being done in conjunction with this rulemaking. The effect of this approval is to ensure Federal enforceability of the State air program plan and to maintain consistency between the State-adopted plan and the approved SIP.
This rule is effective on February 12, 2004.
Leland Daniels, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101, or by e-mail at
Throughout this document whenever “we”, “us”, or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:
What is a SIP?
What is the Federal approval process for a SIP?
What does Federal approval of a State regulation mean to me?
What is being addressed in this document?
Have the requirements for approval of a SIP revision been met?
What action is EPA taking?
Section 110 of the Clean Air Act (CAA) requires States to develop air pollution regulations and control strategies to ensure that State air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.
Each State must submit these regulations and control strategies to us for approval and incorporation into the federally-enforceable SIP.
Each federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing State regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.
In order for State regulations to be incorporated into the federally-enforceable SIP, States must formally adopt the regulations and control strategies consistent with State and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a State-authorized rulemaking body.
Once a State rule, regulation, or control strategy is adopted, the State submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the State submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.
All State regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual State regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given State regulation with a specific effective date.
Enforcement of the State regulation before and after it is incorporated into the federally-approved SIP is primarily a State responsibility. However, after the regulation is federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.
For the past ten years, Missouri has had a maintenance plan in place to maintain the 1-hour ozone standard in the Missouri portion of the Kansas City maintenance area through 2002. The CAA requires that the maintenance plan be revised. Missouri's submittal of December 17, 2002, contained a revised plan that describes what will be done during the next ten-year period to maintain the 1-hour ozone standard in the Missouri portion of the Kansas City maintenance area through 2012.
Our proposed approval of Missouri's revised maintenance plan for the Missouri portion of the Kansas City 1-hour ozone maintenance area was published September 16, 2003 (68 FR 54186). No comments regarding the proposed approval were received.
The State submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained in this final rule and in more detail in the technical support document which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
Our review of the material submitted indicates that the State has revised the maintenance plan in accordance with the requirements of the CAA. A detailed discussion of our rationale for this determination is contained in the September 16, 2003, proposal. For the reasons stated in the proposal, we are fully approving Missouri's revised maintenance plan for maintaining the 1-hour ozone standard for the second ten-year period in the Missouri portion of the Kansas City maintenance area.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency.
Notice of partial deletion of the Del Monte Corporation (Oahu Plantation) Superfund Site from the National Priorities List.
The Environmental Protection Agency (EPA) Region 9 announces the deletion of the Poamoho section of the Del Monte Corporation (Oahu Plantation) Superfund Site (the Site) from the National Priorities List (NPL). The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, 42 U.S.C. 9605, is codified at Appendix B of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300. This partial deletion is consistent with the EPA's Notice of Policy Change: Policy Regarding Partial Deletion of Sites Listed on the National Priorities List. 60 FR 55466 (November 1, 1995). This partial deletion pertains to the Poamoho section of the Site. This partial deletion does not pertain to the Kunia section of the site. The Kunia section of the site will remain on the NPL, and response activities will continue at that section. With the concurrence of the State of Hawaii through the Hawaii Department of Health (DOH), the EPA has determined that Site investigations show that the Poamoho section of the Site poses no significant threat to public health or the environment; consequently, pursuant to CERCLA section 105, and 40 CFR 300.425(e), the Poamoho section of the Site is hereby deleted from the NPL.
January 13, 2004.
Janet Rosati, Remedial Project Manager, (415) 972-3165, or toll-free (800) 231-3075, U. S. Environmental Protection Agency, Region 9, 75 Hawthorne Street, Mail Code SFD-8-2, San Francisco, CA 94105. Information on the Site is available at the local information repository located at: Wahiawa Public Library, 820 California Avenue, Wahiawa, HI 96786, (808) 622-6345. Site information is also available at the U.S. EPA Records Center, 95 Hawthorne Street, San Francisco, CA 94105, (415) 536-2000.
The site to be partially deleted from the NPL is the Del Monte Corporation (Oahu Plantation) Superfund Site, Kunia, Honolulu County, Oahu, Hawaii. This partial deletion pertains to the Poamoho section of the Site. This partial deletion does not pertain to the Kunia section of the Site. This partial deletion is in accordance with 40 CFR 300.425(e) and the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List, 60 FR 55466 (Nov. 1, 1995). A Notice of Intent to Partially Delete this Site was published in the
EPA identifies sites that appear to present a significant risk to public health, welfare, or the environment and
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR 1987 Comp., p. 193.
Environmental Protection Agency (EPA).
Final rule.
EPA is revoking significant new use rules (SNURs) for four substances promulgated under section 5(a)(2) of the Toxic Substances Control Act (TSCA) based on new data. Based on the new data the Agency no longer finds that activities not described in the corresponding TSCA section 5(e) consent orders or premanufacture notices (PMN) for these chemical substances may result in significant changes in human or environmental exposure.
This final rule is effective on February 12, 2004.
You may be potentially affected by this action if you manufacture, import, process, or use the chemical substances contained in this revocation. Potentially affected entities may include, but are not limited to:
• Chemical manufacturers (NAICS 325), e.g., persons manufacturing, importing, processing, or using chemicals for commercial purposes.
• Petroleum and coal product industries (NAICS 324), e.g., persons manufacturing, importing, processing, or using chemicals for commercial purposes.
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in title 40 of the Code of Federal Regulations (CFR) at 40 CFR 721.5. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
The Agency proposed the revocation of these SNURs in the
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including those listed in section 5(a)(2) of TSCA. Once EPA determines that a use of a chemical substance is a significant new use, section 5(a)(1)(B) of TSCA requires persons to submit a notice to EPA at least 90 days before they manufacture, import, or process the substance for that use. The mechanism for reporting under this requirement is established under 40 CFR 721.5.
During review of the PMNs submitted for the chemical substances that are the subject of this revocation, EPA concluded that regulation was warranted based on available information that indicated activities not described in the TSCA section 5(e) consent order or PMN might result in significant changes in human or environmental exposure as described in section 5(a)(2) of TSCA. Based on these findings, SNURs were promulgated.
EPA has revoked the TSCA section 5(e) consent orders that are the basis for these SNURs and no longer finds that activities other than those described in the TSCA section 5(e) consent orders or PMN may result in significant changes in human or environmental exposure. The revocation of SNUR provisions for these substances is consistent with the findings set forth in the preamble to the proposed revocation of each individual SNUR.
Therefore, EPA is revoking the SNUR provisions for these chemical substances. When this revocation becomes final, EPA will no longer require notice of intent to manufacture, import, or process these substances. In addition, export notification under section 12(b) of TSCA will no longer be required.
This rule revokes or eliminates an existing regulatory requirement and does not contain any new or amended requirements. As such, the Agency has determined that this SNUR revocation will not have any adverse impacts, economic or otherwise.
The Office of Management and Budget (OMB) has exempted these types of regulatory actions from review under Executive Order 12866, entitled
For the same reasons, this action does not require any action under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). This rule has neither Federalism implications, because it will not have substantial direct effects 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, as specified in Executive Order 13132, entitled
This action is not subject to Executive Order 13045, entitled
The Congressional Review Act (CRA), 5 U.S.C. 801
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
15 U.S.C. 2604, 2607, and 2625(c).
Department of Defense (DoD).
Final rule.
DoD is making technical amendments to the Defense Federal Acquisition Regulation Supplement to update activity names and Internet addresses.
January 13, 2004.
Ms. Michele Peterson, Defense Acquisition Regulations Council, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0311; facsimile (703) 602-0350.
Government procurement.
41 U.S.C. 421 and 48 CFR Chapter 1.
Department of Defense (DoD).
Interim rule with request for comments.
DoD has issued an interim rule amending the Defense Federal Acquisition Regulation Supplement to implement new Free Trade Agreements with Chile and Singapore, as approved by Congress in the United States-Chile Free Trade Agreement Implementation Act and the United States-Singapore Free Trade Agreement Implementation Act. The new Free Trade Agreements waive the applicability of the Buy American Act for some foreign supplies and construction materials from Chile and Singapore, and specify procurement procedures designed to ensure fairness.
Respondents may submit comments via the Internet at
Respondents that cannot submit comments using either of the above methods may submit comments to: Defense Acquisition Regulations Council, Attn: Ms. Amy Williams, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062; facsimile (703) 602-0350. Please cite DFARS Case 2003-D088.
At the end of the comment period, interested parties may view public comments on the Internet at
Ms. Amy Williams, (703) 602-0328.
This rule amends DFARS 212.301, 213.302-5, part 225, and associated clauses to implement new Free Trade Agreements with Chile and Singapore, as approved by Congress in the United States-Chile Free Trade Agreement Implementation Act (Pub. L. 108-77) and the United States-Singapore Free Trade Agreement Implementation Act (Pub. L. 108-78). Applicable changes to the Federal Acquisition Regulation (FAR) were published in Federal Acquisition Circular 2001-19 on January 7, 2004 (69 FR 1051).
The threshold for applicability of the new Free Trade Agreements with Chile and Singapore is $58,550 for supplies and services, and $6,725,000 for construction. Singapore was already a signatory to the Agreement on Government Procurement, and therefore was already included as a designated country under the Trade Agreements Act (FAR 25.003), with thresholds of $175,000 for supplies or services and $6,725,000 for construction.
The trade agreements clauses at DFARS 252.225-7021, 252.225-7036, and 252.225-7045 are amended to include definitions of “Free Trade Agreement country” and “Free Trade Agreement country end product” or “Free Trade Agreement country construction material” instead of “NAFTA country” and “NAFTA country end product” or “NAFTA country construction material.” The Free Trade Agreement countries are Canada, Chile, Mexico, and Singapore.
Section 106 of Pub. L. 108-77 and section 106 of Pub. L. 108-78 provide for arbitration of certain claims. The United States is authorized to resolve any claim against the United States covered by the section of the applicable Free Trade Agreement relating to Investor-State Disputes Settlement, pursuant to the investor-state dispute settlement procedures set forth in the applicable section (section B of chapter 10 for Chile; section C of chapter 15 for Singapore). DoD invites comment on
This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
This interim rule affects the certification and information collection requirements in the provisions at DFARS 252.225-7020 and 252.225-7035, currently approved under OMB Clearance 0704-0229. The impact, however, is negligible. In the provision at DFARS 252.225-7020, Trade Agreements Certificate, the offeror no longer has to list offers of end products from Chile as nondesignated country end products. However, offers of Chilean end products would have been unlikely, because purchase of foreign products other than eligible products is prohibited by the Trade Agreements Act. In the provision at DFARS 252.225-7035, Buy American Act—Free Trade Agreements—Balance of Payments Program Certificate, the offeror must list all end products that are not domestic end products. The offeror will list products of Chile and Singapore on the list of Free Trade Agreement country end products, rather than the list of “other foreign end products.”
A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to publish an interim rule prior to affording the public an opportunity to comment. This interim rule implements new Free Trade Agreements with Chile and Singapore, as approved by Congress in the United States-Chile Free Trade Agreement Implementation Act (Pub. L. 108-77) and the United States-Singapore Free Trade Agreement Implementation Act (Pub. L. 108-78). These agreements waive the applicability of the Buy American Act for some foreign supplies and construction materials from Chile and Singapore, and specify procurement procedures designed to ensure fairness. The new Free Trade Agreements became effective on January 1, 2004. Comments received in response to this interim rule will be considered in the formation of the final rule.
Government procurement.
41 U.S.C. 421 and 48 CFR chapter 1.
(f)(i) * * *
(C) 252.225-7035, Buy American Act—Free Trade Agreements—Balance of Payments Program Certificate.
(d) * * *
(ii) 252.225-7036, Buy American Act—Free Trade Agreements—Balance of Payments Program, as prescribed at 225.1101(10).
(4)
(5)
(i) A foreign end product that—
(A) Is in a category listed in 225.401-70; and
(B) Is not subject to discriminatory treatment, due to the applicability of a trade agreement to a particular acquisition; or
(ii) A foreign service that is not subject to discriminatory treatment, due to the applicability of a trade agreement to a particular acquisition.
(10)
Acquisitions of end products in the following Federal supply groups (FSG) are subject to trade agreements, if the value of the acquisition is at or above the applicable trade agreement threshold and no exception applies. If an end product is not in one of the listed groups, the trade agreements do not apply. The definition of Caribbean Basin country end products in FAR 25.003 excludes those end products that are not eligible for duty-free treatment under 19 U.S.C. 2703(b). Therefore certain watches, watch parts, and luggage from
(c) * * *
(i) * * *
(B) If the acquisition is also subject to a Free Trade Agreement, then end products of the applicable Free Trade Agreement country are also exempt from application of the Buy American Act or Balance of Payments Program evaluation factor.
(2) * * *
(iv) * * *
(B) 252.225-7036, Buy American Act—Free Trade Agreements—Balance of Payments Program.
(3) * * *
(iii) 252.225-7036, Buy American Act—Free Trade Agreements—Balance of Payments Program.
(9) Use the provision at 252.225-7035, Buy American Act—Free Trade Agreements—Balance of Payments Program Certificate, instead of the provision at FAR 52.225-4, Buy American Act—Free Trade Agreements—Israeli Trade Act Certificate, in solicitations that include the clause at 252.225-7036, Buy American Act—Free Trade Agreements—Balance of Payments Program. Use the provision with its Alternate I when the clause at 252.225-7036 is used with its Alternate I.
(10)(i) Use the clause at 252.225-7036, Buy American Act—Free Trade Agreements—Balance of Payments Program, instead of the clause at FAR 52.225-3, Buy American Act—Free Trade Agreements—Israeli Trade Act, in solicitations and contracts for the items listed at 225.401-70, when the estimated value equals or exceeds $25,000, but is less than $175,000, and a Free Trade Agreement applies to the acquisition.
(A) Use the basic clause when the estimated value equals or exceeds $58,550.
(B) Use the clause with its Alternate I when the estimated value equals or exceeds $25,000 but is less than $58,550.
(ii) Do not use the clause if purchase from foreign sources is restricted (see 225.401(a)(2)), unless the contracting officer anticipates a waiver of the restriction.
(iii) The acquisition of eligible and noneligible products under the same contract may result in the application of a Free Trade Agreement to only some of the items acquired. In such case, indicate in the Schedule those items covered by the Buy American Act—Free Trade Agreements—Balance of Payments Program clause.
(b) * * *
(1) * * *
(ii) Is an eligible product;
(2) The construction material is designated country construction material or Free Trade Agreement country construction material, and the acquisition is subject to the Trade Agreements Act or a Free Trade Agreement respectively; or
a. In paragraph (a), and in paragraph (b) in the first and second sentences, by removing “$6,481,000” and adding in its place “$6,725,000”; and
b. In paragraph (b), in the second sentence, by removing “$7,304,733” and adding in its place “$7,611,532”.
(b) * * *
___252.225-7036 Buy American Act—Free Trade Agreements—Balance of Payments Program (JAN 2004) (__Alternate I) (JAN 2004) (41 U.S.C. 10a-10d and 19 U.S.C. 3301 note).
(a) * * *
(2)
(i)
(ii)
(iii)
(3)
(e) * * *
(2) * * *
(iv) * * *
(B) * * * (If the shipment will be consigned to a contractor's plant and no duty-free entry certificate is required due to a trade agreement, the Contractor shall claim duty-free entry under the applicable trade agreement and shall comply with the U.S. Customs Service requirements. No notification to Commander, DCMA New York, is required.)
(a) * * *
(7)
(8)
(i) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or
(ii) In the case of an article that consists in whole or in part of materials from another country or instrumentality, has been substantially transformed in a Free Trade Agreement country into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. The term refers to a product offered for purchase under a supply contract, but for purposes of calculating the value of the end product includes services (except transportation services) incidental to its supply, provided that the value of those incidental services does not exceed the value of the product itself.
(9)
(b) Unless otherwise specified, this clause applies to all items in the Schedule.
(e) United States law will apply to resolve any claim of breach of this contract.
(a)
(b) * * *
(2) For line items subject to Free Trade Agreements, will evaluate offers of qualifying country end products or Free Trade Agreement country end products without regard to the restrictions of the Buy American Act or the Balance of Payments Program.
(c) * * *
(1) For all line items subject to the Buy American Act—Free Trade Agreements—Balance of Payments Program clause of this solicitation, the offeror certifies that—
(2) * * *
(ii) The offeror certifies that the following supplies are Free Trade Agreement country end products:
As prescribed in 225.1101(9), substitute the phrase “Canadian end product” for the phrase “Free Trade Agreement country end product” in paragraph (a) of the basic provision; and substitute the phrase “Canadian end products” for the phrase “Free Trade Agreement country end products” in paragraphs (b) and (c)(2)(ii) of the basic provision.
(a) * * *
(5)
(b) Unless otherwise specified, this clause applies to all items in the Schedule.
(c) The Contractor shall deliver under this contract only domestic end products unless, in its offer, it specified delivery of qualifying country, Free Trade Agreement country, or other foreign end products in the Buy American Act—Free Trade Agreements—Balance of Payments Program Certificate provision of the solicitation. If the Contractor certified in its offer that it will deliver a qualifying country end product or a Free Trade Agreement country end product, the Contractor shall deliver a qualifying country end product, a Free Trade Agreement country end product, or, at the Contractor's option, a domestic end product.
(e) United States law will apply to resolve any claim of breach of this contract.
(End of clause)
(c) The Contractor shall deliver under this contract only domestic end products unless, in its offer, it specified delivery of qualifying country, Canadian, or other foreign end products in the Buy American Act—Free Trade Agreements—Balance of Payments Program Certificate provision of the solicitation. * * *
(a) * * *
“Free Trade Agreement country” means Canada, Chile, Mexico, or Singapore.
“Free Trade Agreement country construction material” means a construction material that—
(1) Is wholly the growth, product, or manufacture of a Free Trade Agreement country; or
(2) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in a Free Trade Agreement country into a new and different construction
(b) This clause implements the Balance of Payments Program by providing a preference for domestic construction material. In addition, the Contracting Officer has determined that the Trade Agreements Act and Free Trade Agreements apply to this acquisition. Therefore, the Balance of Payments Program restrictions are waived for designated country and Free Trade Agreement country construction materials.
(d) United States law will apply to resolve any claim of breach of this contract.
(End of clause)
As prescribed in 225.7503(b), delete the definitions of “Free Trade Agreement country” and “Free Trade Agreement country construction material” from the definitions in paragraph (a) of the basic clause, add the following definition of “Chilean construction material” to paragraph (a) of the basic clause, and substitute the following paragraphs (b) and (c) for paragraphs (b) and (c) of the basic clause:
“Chilean construction material” means a construction material that—
(1) Is wholly the growth, product, or manufacture of Chile; or
(2) In the case of a construction material that consists in whole or in part of materials from another country, has been substantially transformed in Chile into a new and different construction material distinct from the materials from which it was transformed.
(b) This clause implements the Balance of Payments Program by providing a preference for domestic construction material. In addition, the Contracting Officer has determined that the Trade Agreements Act, the Chile Free Trade Agreement, and the Singapore Free Trade Agreement apply to this acquisition. Therefore, the Balance of Payments Program restrictions are waived for designated country and Chilean construction material.
(c) The Contractor shall use only domestic, designated country, or Chilean construction material in performing this contract, except for—
(1) Construction material valued at or below the simplified acquisition threshold in Part 2 of the Federal Acquisition Regulation; or
(2) The construction material or components listed by the Government as follows:
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Interim final rule; correction and announcement of public hearing.
On December 18, 2003, FRA published an Interim Final Rule (IFR) in the
Correction: The correction to part 222 is effective December 18, 2004.
Public Hearing: The date of the public hearing is February 4, 2004, at 9:30 a.m. in Washington, DC. Any person wishing to participate in the public hearing should notify FRA's Docket Clerk by telephone (202-493-6030), by fax (202-493-6068), or by mail at the address provided below at least five working days prior to the date of the hearing. The notification should identify the party the person represents, and the particular subject(s) the person plans to address. The notification should also provide the Docket Clerk with the participant's mailing address.
(1) Docket Clerk: Written notification should identify the docket number of this proceeding (Docket No. FRA-1999-6439) and must be submitted to Ms. Ivornette Lynch, Docket Clerk, Office of Chief Counsel, Federal Railroad Administration, RCC-10, 1120 Vermont Avenue, NW., Stop 10, Washington, DC 20590.
(2) Public Hearing: The public hearing will be held at the Washington Plaza Hotel, 10 Thomas Circle, NW., Washington, DC 20005.
Ron Ries, Office of Safety, FRA, 1120 Vermont Avenue, NW., Stop 25, Washington, DC 20590 (telephone 202-493-6299); or Kathryn Shelton, Office of Chief Counsel, FRA, 1120 Vermont Avenue, NW., Stop 10, Washington, DC 20590 (telephone 202-493-6038).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues a final rule to revise regulations requiring seabird avoidance measures in the hook-and-line groundfish fisheries of the Bering Sea and Aleutian Islands management area (BSAI) and Gulf of Alaska (GOA) and in the Pacific halibut fishery in U.S. Convention waters off Alaska. This action is intended to improve the current requirements and further mitigate interactions with the short-tailed albatross (Phoebastria albatrus), an endangered species protected under the Endangered Species Act (ESA), and with other seabird species in hook-and-line fisheries in and off Alaska, and thus further the goals and objectives of the Magnuson-Stevens Fishery
Effective February 12, 2004.
Copies of the Environmental Assessment/Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA) prepared for this action maybe be obtained from the Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Lori Durall, or by calling (907) 586-7228. Written comments regarding the burden-hour estimate or other aspects of the collection-of-information requirement contained in this rule may be submitted to NMFS, Alaska Region, and by email to
Kim S. Rivera, (907) 586-7424, or
The U.S. groundfish fisheries of the GOA and the BSAI in the exclusive economic zone (EEZ) are managed by NMFS under the Fishery Management Plan for Groundfish of the Gulf of Alaska and the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMPs). The FMPs were prepared by the North Pacific Fishery Management Council (Council) under the authority of the Magnuson-Stevens Act (16 U.S.C. 1801
This action is intended to reduce the incidental take of seabirds in hook-and-line fisheries. The Magnuson-Stevens Act emphasizes the importance of reducing bycatch to maintain sustainable fisheries. Although seabirds are not included within the Magnuson-Stevens Act's “bycatch” definition, efforts to reduce the incidental take of seabirds in fisheries are consistent with the Magnuson-Stevens Act's objective to conserve and manage the marine environment. In addition, the NMFS' guidelines for implementing the Magnuson-Stevens Act's national standards for fishery conservation and management note that other applicable laws, such as the Marine Mammal Protection Act, the ESA, and the MBTA, require that Councils consider the impact of conservation and management measures on living marine resources other than fish; i.e. marine mammals and birds. Additionally, reducing the take of migratory birds is addressed in NMFS' National Bycatch Strategy (available at
Awareness of seabird incidental take and incidental mortality in commercial fishing operations off Alaska has been heightened in recent years. Further information on this issue was provided in the preambles to the proposed and final rules implementing seabird avoidance measures in the GOA and BSAI hook-and-line groundfish fisheries (62 FR 10016, March 5, 1997, and 62 FR 23176, April 29, 1997) and in the Pacific halibut fishery off Alaska (62 FR 65635, December 15, 1997, and 63 FR 11161, March 6, 1998) and the EA/RIR/FRFAs prepared for those actions. Additional background information is available in the final report prepared and submitted to the Council and NMFS by the Washington Sea Grant Program (WSGP), Solutions to Seabird Bycatch in Alaska's Demersal Longline Fisheries (available at
The NMFS North Pacific Groundfish Observer Program office has documented incidental take of seabird species in the GOA and BSAI groundfish fisheries since 1989. Since 2000, the seabird bycatch estimates have been incorporated into the seabird section of the Ecosystem Considerations chapter of the Council's annual Stock Assessment and Fishery Evaluation reports for the GOA and BSAI groundfish fisheries (SAFE). Estimates of the annual seabird incidental take for the Alaska groundfish fisheries, based on 1993 to 1999 observer data, were provided in the EA/RIR/IRFA prepared for the proposed rule. Approximately 15,700 seabirds were killed (taken) annually in the combined BSAI and GOA groundfish hook-and-line fisheries (14,500 in the BSAI and 1,200 in the GOA) at the average rates of 0.10 and 0.03 birds per 1,000 hooks in the BSAI and in the GOA, respectively. Approximately 60 percent of the 15,700 seabirds taken are northern fulmars (
The annual seabird bycatch estimates based on observer data from 1993 through 2002 exhibit extreme inter-annual variation, as did the take numbers and bird attack rates on baits in the WSGP study. The bycatch rate in 2002 may have decreased because fishermen are becoming more diligent and skilled using seabird avoidance measures, outreach efforts are successful, or the 1999-2000 WSGP research program's collaborative industry approach may have acted to change fishermen's behavior and improve the effective deployment of seabird avoidance measures. Many other factors, both anthropogenic and non-anthropogenic, may affect seabird hooking and entanglement in longline gear. These factors may include geographic location of fishing activity; time of day; season; type of fishing operation and gear used; bait type; condition of the bait; length of time
For a more detailed description of the Council's final action, based in part on WSGP research results and recommendations, see the preamble to the proposed rule (68 FR 6386, February 7, 2003).
For more detailed descriptions of the seabird avoidance requirements, see the preamble to the proposed rule (68 FR 6386, February 7, 2003). Seabird avoidance measures apply to the operators of vessels using hook-and-line gear for (1) Pacific halibut in the Individual Fishing Quota (IFQ) and Community Development Quota (CDQ) management programs (0 to 200 nautical miles (nm)), (2) IFQ sablefish in EEZ waters (3 to 200 nm) and waters of the State of Alaska (0 to 3 nm), except waters of Prince William Sound and areas in which sablefish fishing is managed under a State of Alaska limited entry program (Clarence Strait, Chatham Strait), and (3) groundfish (except IFQ sablefish) with hook-and-line gear in the U.S. EEZ waters off Alaska (3 to 200 nm).
Operators of all applicable vessels using hook-and-line gear are required to comply with the following bird line requirements (see Table 20):
Other seabird avoidance devices and methods include weights added to groundline, a buoy bag line or streamer line of specified performance standards, and strategic offal discharge to distract birds away from the setting of baited hooks, that is, discharge fish, fish parts (i.e. offal) or spent bait to distract seabirds away from the main groundline while setting gear.
To enhance the effectiveness and improve the enforcement of seabird avoidance measures, this rule specifies the gear performance and material standards for larger vessels (vessels greater than or equal to 55 ft (16.8 m) LOA). Voluntary guidelines for gear performance and material standards for smaller vessels (vessels greater than or equal to 26 ft (7.9m) and less than 55 ft (16.8 m) LOA) were provided in the preamble to the proposed rule (68 FR 6386, February 7, 2003). The only standard applied to seabird avoidance gear for smaller vessels in this rule is discussed in Weather Safety Factor.
Operators of vessels less than 32 ft (9.8m) LOA using hook-and-line gear and fishing in state waters of IPHC Area 4E are exempt from using seabird avoidance measures.
Regulations at § 679.5(a)(7)(ix)(C)(3) currently require operators of catcher vessels or catcher/processor vessels using longline gear to report the bird avoidance gear deployed using gear codes at Table 19 to part 679. Because this rule revises the required seabird avoidance measures, the seabird avoidance codes at Table 19 to part 679 are revised to reflect these changes.
A Seabird Avoidance Plan that is written and onboard the vessel must contain the following information: (1) Vessel name, (2) master's name, (3) type of bird avoidance measures utilized, (4) positions and responsibilities of crew for deploying, adjusting, and monitoring performance of deployed gear, (5) instructions and/or diagrams outlining the sequence of actions required to deploy and retrieve the gear to meet specified performance standards, and (5) procedures for strategic discharge of offal, if any. The Seabird Avoidance Plan is prepared and signed by the vessel operator. The vessel operator's signature indicates the operator has read the plan, reviewed it with the vessel crew, made it available to the crew, and instructed vessel crew to read it. The Seabird Avoidance Plan must be made available for inspection upon request by an authorized officer (USCG boarding officer, NMFS Enforcement Officer or other designated official) or an observer.
Operators of observed vessels are required to collect seabirds from the observer-sampled portions of hauls using hook-and-line gear or as requested by an observer during non-sampled portions of hauls.
Paragraphs § 679.32(f)(2)(v) and § 679.42(b)(2) require the use of seabird avoidance measures on all vessels of a specified length that are fishing in U.S. Convention waters off Alaska for Pacific halibut, whether the vessels are engaged in IFQ fisheries or CDQ fisheries.
Definitions are added at § 679.2 for two previously undefined terms: “snap gear” (as a type of “authorized fishing gear”) and “seabird."
Seabird avoidance requirements currently in § 679.24 (e)(2)(i), (ii), and (iii) are redesignated as paragraphs (e)(2)(iv), (e)(2)(v)(A), and (e)(2)(vi), respectively.
The notice of proposed rulemaking specified seabird avoidance requirements for operators of vessels fishing with hook-and-line gear in NMFS Reporting Areas 649, 659, or state waters of Cook Inlet and while fishing in the EEZ [see 68 FR 6394, columns 1 and 2 and Table 20 at 6398 (February 7, 2003)]. A comment received during the public comment period (see Comment 1) noted that it was not clear if the proposed regulations applied to vessels fishing in State waters. The commenter recalled that the Council's action specified that these vessels fishing in State waters for species other than halibut would be subject to regulations adopted by the Alaska Board of Fisheries (Board). The commenter is correct and the final rule is clarified to indicate that the requirements for operators of vessels fishing in the EEZ also apply to vessel operators fishing for IFQ halibut, CDQ halibut, and IFQ sablefish in waters shoreward of the EEZ. NMFS regulates IFQ and CDQ fishermen participating in each of these three fisheries in State waters (0-3 nm), including implementation of seabird avoidance requirements. These clarifications are made with a new paragraph at § 679.24(e)(4)(iv), minor revisions at § 679.24(e)(4)(ii) and (iii), revision of the title legend of Table 20, and the corresponding text changes to Table 20. Companion clarifications are also made for the requirements in IPHC Area 4E.
The notice of proposed rulemaking specified seabird avoidance requirements for operators of vessels fishing with hook-and-line gear, other than snap gear, in NMFS Reporting Areas 649 and 659, or state waters of Cook Inlet and for operators of vessels that use snap gear [see 68 FR 6394, columns 1 and 2 and Table 20 at 6398 (February 7, 2003)]. A comment received during the public comment period (see Comment 2) noted that it was not clear whether the proposed regulation for vessels with snap gear and the corresponding language in Table 20 apply to vessels when fishing only in the EEZ or when fishing in any area, including inside state waters (NMFS Areas 649 and 659). The commenter noted that the Council's final action was that the requirements for inside waters apply to all hook-and-line gear types (i.e. including snap gear) and that the specific requirements for vessels using snap gear apply only when fishing in the EEZ. The commenter is correct. The Council's final action on seabird avoidance measures was that the requirements for inside waters would apply also to vessels using snap gear. The specific snap gear requirements were not intended to apply to vessels fishing in the inside waters. Changes from the proposed regulation at § 679.24(e)(4)(i) and (iii) and in Table 20 are made in the final rule. Companion clarifications are also made for the requirements in IPHC Area 4E.
The notice of proposed rulemaking revised the bird avoidance codes in Table 19 to correspond to the proposed changes in seabird avoidance measures. See 68 FR 6396 and 6397, February 7, 2003. A comment addressed under Comment 13 noted that the regulations should more clearly specify that more than one device, and therefore more than one code, can be used at the same time. The commenter is correct that more than one device can be used at a time; therefore NMFS makes this clarification in the recordkeeping and reporting requirements at § 679.5(c)(1)(xvii).
The notice of proposed rulemaking specified that operators of vessels required to carry one or more observers must provide assistance that would include collecting all seabirds that are incidentally taken on the observer-sampled portions of hauls using hook-and-line gear or as requested by an observer during non-sampled portions of hauls. See 68 FR 6395, February 7, 2003. When the notice of proposed rulemaking was drafted in 2002, the regulatory responsibilities for vessels carrying observers were codified at § 679.50(f)(1). A final rule was published on December 6, 2002, 67 FR 75295, that extended the effective date of the existing regulations for the interim North Pacific Groundfish
The notice of proposed rulemaking specified that seabird avoidance measures would be required on all vessels of a specified length that are fishing in U.S. Convention waters off Alaska for Pacific halibut, whether the vessels are engaged in IFQ fisheries or CDQ fisheries. The proposed regulation for the halibut CDQ fisheries was designated at § 679.32 (f)(2)(vi). See 68 FR 6395, February 7, 2003. When the notice of proposed rulemaking was drafted in 2002, the regulatory responsibilities for halibut CDQ vessel operations were codified at § 679.32(f). A final rule was published on July 29, 2003, 68 FR 44473, that revised extensively certain requirements for the IFQ and CDQ programs for the Pacific halibut fishery and also amended regulations governing these programs. The amended regulations included redesignations of some of the sub-paragraphs of paragraph § 679.32 (f)(2) to § 679.4(e). This seabird final rule reflects the correct designation for the paragraph in § 679.32(f) on halibut CDQ. A new paragraph (5) will be added to this section, and will require the CDQ group, and vessel owner or operator to comply with all of the seabird avoidance requirements at § 679.42(b)(2).
NMFS received 11 letters containing 50 different comments on the proposed seabird avoidance measures. The summarized comments and responses to them follow:
A system does not currently exist within NMFS to provide for individual vessel accountability whereby vessels could demonstrate if the deployment of paired streamer lines was practicable. Thus, such a system, as suggested by the commenter, is not feasible at this time. More importantly, NMFS does not believe such a system is necessary given that the final regulations are designed to effectively reduce seabird bycatch in the fleet component most responsible for seabird bycatch.
The 1999 USFWS Biological Opinion conservation recommendations are discretionary agency activities. While observer coverage has not yet been implemented in these fisheries, NMFS did address this conservation recommendation as evident from the series of steps described above.
Due to various data confidentiality considerations, NMFS does not release specific data identified by vessel in a report such as that described by the commenter. Specific data may be released on a case-by-case basis. Some vessel-specific data are available for release, as identified at § 679.50(k), but seabird bycatch data are currently not included in that category. NMFS is using vessel-specific data to identify vessels that have incidental take higher than fleet averages, and hopes to work with individual owners and operators to reduce seabird bycatch on their vessels. Industry-sponsored programs use vessel-specific data and this approach appears to be very effective in reducing seabird incidental take. Through broad-scale analysis, vessel-specific work, and continued coordination with industry, NMFS will be able to develop a measure of the effectiveness of the seabird avoidance measures. However, precise evaluations require experimental design and testing, as was conducted by the WSGP. The commenter also requested an analysis of vessel-specific or fleet-wide CPUEs comparing when observers are onboard with when they are not. That type of analysis is not possible, because NMFS does not have CPUE data
NMFS acknowledges the requirement in the Biological Opinion for the Hawaiian longline fishery to provide annual reports of seabird incidental take, but notes such a requirement is not necessary for the North Pacific groundfish fisheries because these reports have been made available annually for several years. NMFS recognizes the importance of this information to stakeholders and plans to continue to provide these estimates and to produce reports with greater detail.
The cumulative effects of all longline mortality on seabird populations in the North Pacific are not well understood. The fishery-specific seabird bycatch estimates for fisheries operating in international waters and those of several nations' EEZs are not available. While we may greatly reduce the incidental take of albatross by implementing these measures in Alaskan demersal groundfish fisheries, efforts need to continue at the national and international levels as well. A recent paper published on potential cumulative effects of North Pacific pelagic longline fisheries on albatross populations illustrates the need for such cooperation (R.L. Lewison &L.B. Crowder, 2003, Estimating fishery bycatch and effects on a vulnerable seabird population. Ecological Applications 13:743-753). NMFS has played a role in these efforts and will continue to do so.
Although seabird mortalities in demersal groundfish fisheries have not been eliminated, NMFS actions to reduce seabird bycatch off Alaska have reduced seabird mortality and brought this issue to the attention of all vessel owners, operators, and crew. The regulatory climate supported a truly collaborative approach among the fishing industry, academia and agencies and allowed vessel operators some flexibility to test a variety of measures on their own. Operators were able to provide guidance to WSGP to choose those measures for testing that were the most likely to be effective while also preserving the safety of the crew and maintaining catch levels of target species. The current regulatory revisions resulted from that process.
In 2000, the USFWS initiated a program to fund and distribute free streamer lines to Alaska longline fishermen. Each fisherman who applies receives 2 buckets, each containing a streamer line that meets the material standards being set forth in these final regulations. When skippers from smaller vessels were asked about their use of these paired streamer lines, they all indicated that they only deployed a single line and kept the second one onboard as a spare in the event of breakage or tangling.
The regulations are designed to avoid the killing of the short-tailed albatross and other seabirds and paired streamer lines are required on the vessels accounting for the vast majority of fish harvest. A more appropriate indicator of fishing and thus the possibility of bird/fishery interactions is amount of harvest rather than number of vessels. The amount of fish harvested by a single vessel varies greatly, depending upon numerous factors such as vessel size, hold capacity, length of fishing trip, and processing capability. Whereas the WSGP study found that paired streamer lines were more effective than single streamer lines (88 to 100 percent bycatch reduction compared to 71 to 96 percent for single lines), there are scenarios when single streamer lines are appropriate and can effectively reduce bycatch. The final regulations require paired streamer lines, the most effective and stringent of the devices evaluated, in those situations when more birds are more likely to be encountered fishing in the EEZ by larger vessels (and these are often the processing vessels that are more likely to attract birds due to the discharge of offal and processing waste). Single streamer lines (and in some instances buoy bags) are required of vessels fishing in inside waters where they are less likely to encounter albatross and other seabirds.
The WSGP study also evaluated the efficacy of the lining tube at reducing seabird bycatch. Given some operational limitations to its performance, as well as its cost (approximately $40,000 per unit), the mandatory use of a lining tube is not warranted. Operational limitations include depth below the surface at which the tube delivered gear changed with sea conditions, vessel loading causes variation in tube's effectiveness, propeller turbulence may cause the groundline to resurface, occasionally the groundline jumps out of the slot that runs along the side of the tube, and the lining tube can only be fitted to vessels that set gear from their lower decks.
In the Biological Opinion on the Effects of the Total Allowable Catch (TAC) -Setting Process for the Gulf of Alaska and Bering Sea/Aleutian Islands Groundfish Fisheries to the Endangered Short-tailed Albatross (Phoebastria albatrus) and Threatened Steller's Eider (Polysticta stelleri) (TAC BiOp) issued by the USFWS in September 2003, NMFS is directed to collect information on the deployment and use of seabird avoidance measures for the largest possible sample of hook-and-line gear sets. Data shall be collected by observers, or other non-self-reporting means, and shall begin no later than January 1, 2004. These data will be summarized and reported to USFWS by September 30 of the calendar year following the report year. In response to this requirement, NMFS's Observer Program has established protocols for groundfish observers on longline vessels to collect this information beginning in 2004. Information about seabird bycatch estimates and the effectiveness of required seabird avoidance measures can be conveyed to the longline fishermen using these measures as well as other members of the interested public. However, some caution must be used when evaluating changes in annual levels of seabird bycatch. Seabird bycatch estimates display extreme inter-annual variation and seabird bycatch can be influenced by a complex myriad of factors, not just the use of seabird avoidance measures (see response to Comment 17). One cannot assume that increases in bycatch levels are solely attributable to lack of use of seabird avoidance measures by fishermen, or conversely that reductions in seabird bycatch levels are entirely due to the successful use of seabird avoidance gear.
NMFS does not plan to directly monitor the life expectancy of the streamer lines. Due to the required performance standards, the crew must maintain the gear in working order. It is the responsibility of the vessel operator to replace seabird avoidance gear that is no longer functioning properly. We expect that industry will notify NMFS and the manufacturer if it perceives a problem with longevity of the streamer lines.
Enforcement of many of the regulations for the Alaska groundfish and IFQ fisheries are addressed through summary settlement schedules. These schedules reflect a progressive enforcement response, dependent on the severity of the violation and considered on a case-by-case basis. Such schedules provide information to assist persons required to comply with the regulations. NMFS is preparing a summary settlement schedule for the seabird avoidance regulations and upon completion the schedule will be made available at
NMFS agrees that research efforts are important to provide the best available scientific information on which to base fishery management decisions. NMFS has collaborated with USFWS for the past 3 years on various research efforts to address management needs. USFWS has received a total of approximately $1.5 million in Congressional appropriations to address Alaska seabird bycatch initiatives. Many of the research projects mentioned have been funded by this initiative. Other funded projects include: testing of IW longline gear, seeking innovative solutions to seabird bycatch on small longline vessels, observer training materials, continued distribution of free streamer lines, and production of an educational video. USFWS collaborators include WSGP, NMFS, ADF&G, the Alaska Marine Advisory Program, and numerous industry associations.
NMFS concurs that additional study is needed on seabird abundance and interactions with fisheries in inside waters. See the response to comment 19 for a description of work that was initiated in 2002 to address this. As the short-tailed albatross population grows and expands into its former range, we would expect that the potential for interactions with fishing vessels in those same areas would increase. NMFS and other agencies are collaborating with USFWS to promote the reporting of short-tailed albatross from existing platforms of opportunity such as commercial fishing vessels, agency survey vessels, and cruise and ferry ships. To date, the USFWS database includes 990 observation records of short-tailed albatross. Between 1975 and 1991, only 56 sightings of short-tailed albatross were reported, with the majority reported since 1991. These records do not necessarily represent 990 unique short-tailed albatross and may reflect vessel distribution rather than albatross abundance and distribution. The recent satellite telemetry collaboration project undertaken by the United States (USFWS) and Japan will greatly enhance our knowledge of the at-sea distribution of this endangered species.
The Council recommended this action to the Secretary for adoption pursuant to its authority under the Magnuson-Stevens Act and other applicable laws. NMFS prepared an EA/RIR/IRFA for the proposed revisions to the seabird avoidance measures in the hook-and-line groundfish fisheries of the BSAI and GOA and in the Pacific halibut fishery in U.S. Convention waters off Alaska that describes the management background, the purpose and need for action, the management alternatives, and the socioeconomic impacts of the alternatives.
The Administrator, Alaska Region, NMFS (Regional Administrator), has determined that this final rule is necessary for the conservation and management of the groundfish fisheries of the BSAI and GOA and the Pacific halibut fishery off Alaska. The Regional Administrator also has determined that this final rule is consistent with the Magnuson-Stevens Act, the Halibut Act, and other applicable laws. No relevant Federal rules exist that duplicate, overlap, or conflict with this action.
NMFS also prepared a FRFA describing the impact of this action on small entities. Copies of this FRFA are available from NMFS (see
Under the final rule, the measures required of all applicable vessels over
The incidental take limit for short-tailed albatross could be exceeded during longline fishing operations. If the regulatory revisions under the final rule improve and strengthen the current seabird avoidance measures, then the likelihood of encountering and taking a short-tailed albatross would be reduced. Therefore, the likelihood of a fishery closure and its ensuing economic impacts would be reduced. If the anticipated take of short-tailed albatross was exceeded in either the groundfish fishery or the halibut fishery, the actual economic impacts resulting from a modification of the reasonable and prudent measures established to minimize take of short-tailed albatross would depend upon the revised measures, which could range from measures required in this rule to closures. The economic impact of fishery closures would depend upon the length of time of the closed period and the extent of the closure. The 1999 exvessel value of the Pacific cod fishery for hook-and-line gear was estimated at approximately $72 million, approximately $71 million for the sablefish fishery, and totaled approximately $150 million for all groundfish species caught with hook-and-line gear. The 2000 exvessel value of the Pacific halibut fishery was estimated at $67 million. Such economic impacts on small entities could result in a substantial reduction in annual gross revenues and could, therefore, potentially have a significant adverse economic impact on a substantial number of small entities. Data are currently not available upon which to draw net revenue conclusions about these probable effects.
The Council considered recommending performance standards for seabird avoidance measures used on vessels greater than 26 ft (7.9 m) LOA and less than or equal to 55 ft (16.8 m) LOA. Until further information becomes available, performance standards for these smaller vessels are suggested only as guidelines.
Three alternatives to the required seabird avoidance measures in this final rule were also considered. The status quo alternative, while posing no additional burden on small entities, would not alter the operations of the hook-and-line fisheries in ways that would significantly reduce the potential for the incidental take of seabirds. It is associated with a heightened chance of fishery closure due to incidental harvest of the endangered short-tailed albatross. Premature fishery closure could be very burdensome for small entities. Although fishery closures were not an alternative to this action considered by the Council, closures could be considered under the Biological Opinion issued under ESA if the incidental take limit is exceeded. The second alternative considered, revisions to existing regulations based on the Council's final action in April 1999, did not specifically address performance and material standards for bird streamer lines. The correct design and deployment of bird scaring lines are known to improve the effectiveness of these seabird avoidance devices. The exemption for vessels under 35 ft (10.7 m) LOA may increase the likelihood of short-tailed albatross takes and consequent fishery closure. Closure could have a substantial adverse impact on small entities. The third alternative considered, revisions to existing regulations based on recommendations from a two-year scientific research study conducted by the WSGP on the effectiveness of seabird avoidance measures used in hook-and-line fisheries off Alaska, would have substantially reduced the likelihood of seabird takes, including takes of the endangered short-tailed albatross, and reduce the potential for fisheries closures. But, it does not mitigate the direct impacts of the regulations on small entities.
The preferred alternative, which is implemented by this final rule, should substantially reduce the likelihood of seabird takes, including takes of short-tailed albatross and reduce the potential for fisheries closures. It does substantially mitigate the direct impacts of the regulations on small entities. The FRFA describes several steps taken in the preferred alternative to minimize the impacts on small entities. As described in Table 2 of the FRFA, “Several modifications reduce the requirements on some classes of small entities: (1) vessels under 26 feet are exempt, (2) performance and material standards are guidelines for vessels between 26 and 55 feet, (3) vessels 32 feet or less fishing halibut in IPHC area 4E are exempt. The improvements made to the seabird avoidance measures with this final rule are expected to be much greater than with any of the other alternatives that were considered and evaluated.
The Small Business Regulatory Enforcement Fairness Act requires agencies to publish one or more Small Entity Compliance Guides for each rule or group of related rules for which the agency prepares a FRFA. The Small Entity Compliance Guide is to be written in plain language and explain the actions a small entity must take to comply with the rule or group of rules. NMFS has prepared a Small Entity Compliance Guide for this action and it is available at
The Seabird Avoidance Plan will also serve to aid small entities in that it is written in plain language, contains illustrations of the required seabird avoidance measures, and describes most of the requirements that must be taken to comply with this rule.
This rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by OMB under control number 0648-0474. Public reporting burden for the Seabird Avoidance Plan is estimated to average 8 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see
Notwithstanding any other provision 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 PRA, unless that collection of information displays a currently valid OMB Control Number.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
Alaska, Fisheries, Recordkeeping and reporting requirements.
16 U.S.C. 773
(17)
(c) * * *
(1) * * *
(xvii) The bird avoidance gear code(s);
(e)
(i) IFQ halibut or CDQ halibut,
(ii) IFQ sablefish, and
(iii) Groundfish in the EEZ off Alaska.
(2)
(i)
(ii)
(iii)
(iv)
(v)
(B) Remove hooks from any offal that is discharged.
(C) Eliminate directed discharge through chutes or pipes of residual bait or offal from the stern of the vessel while setting gear. This does not include baits falling off the hook or offal discharges from other locations that parallel the gear and subsequently drift into the wake zone well aft of the vessel.
(D) For vessels not deploying gear from the stern, eliminate directed discharge of residual bait or offal over sinking hook-and-line gear while gear is being deployed.
(vi)
(3)
(i) Be written, current, and onboard the vessel.
(ii) Contain the following information:
(A) Vessel name.
(B) Master's name.
(C) Type of bird avoidance measures utilized.
(D) Positions and responsibilities of crew for deploying, adjusting, and monitoring performance of deployed gear.
(E) Instructions and/or diagrams outlining the sequence of actions required to deploy and retrieve the gear to meet specified performance standards.
(F) Procedures for strategic discharge of offal, if any.
(G) The NMFS “Seabird Avoidance Plan” form, completed and signed by vessel operator. Vessel operator's signature shall indicate the operator has read the plan, reviewed it with the vessel crew, made it available to the crew, and has instructed the vessel crew to read it.
(iii) Be made available for inspection upon request by an authorized officer or observer.
(4)
(i) While fishing with hook-and-line gear, including snap gear, in NMFS Reporting Area 649 (Prince William Sound), 659 (Eastern GOA Regulatory Area, Southeast Inside District), or state waters of Cook Inlet:
(A) A minimum of 1 buoy bag line as specified in paragraph (e)(5)(i) of this section must be used by vessels greater than 26 ft (7.9 m) LOA and less than or equal to 55 ft (16.8 m) LOA without masts, poles, or rigging.
(B) A minimum of 1 buoy bag line as specified in paragraph (e)(5)(i) of this section must be used by vessels greater than 26 ft (7.9 m) LOA and less than or equal to 32 ft (9.8 m) LOA with masts, poles, or rigging.
(C) A minimum of a single streamer line as specified in paragraph (e)(5)(ii)(B) of this section must be used by vessels greater than 32 ft (9.8 m) LOA and less than or equal to 55 ft (16.8 m) LOA with masts, poles, or rigging.
(D) A minimum of a single streamer line of a standard as specified in paragraph (e)(5)(ii) of this section must be used by vessels greater than 55 ft (16.8 m) LOA.
(ii) While fishing with hook-and-line gear other than snap gear in Federal waters (EEZ) not including NMFS Area 659, or in state waters not specified in paragraph (e)(4)(i):
(A) A minimum of 1 buoy bag line as specified in paragraph (e)(5)(i) of this section and one other device as specified in paragraph (e)(6) of this section must be used by vessels greater than 26 ft (7.9 m) LOA and less than or equal to 55 ft (16.8 m) LOA without masts, poles, or rigging.
(B) A minimum of a single streamer line as specified in paragraph (e)(5)(ii)(B) of this section and one other device as specified in paragraph (e)(6) of this section must be used by vessels greater than 26 ft (7.9 m) LOA and less than or equal to 55 ft (16.8 m) LOA with masts, poles, or rigging.
(C) A minimum of paired streamer lines of a standard as specified in paragraph (e)(5)(iii) of this section must be used by vessels greater than 55 ft (16.8 m) LOA.
(iii) While fishing with snap gear in the EEZ (not including Area 659) or state waters not specified in paragraph (e)(4)(i):
(A) A minimum of 1 buoy bag line as specified in paragraph (e)(5)(i) of this section and one other device as specified in paragraph (e)(6) of this section must be used by vessels greater than 26 ft (7.9 m) LOA and less than or equal to 55 ft (16.8 m) LOA without masts, poles, or rigging.
(B) A minimum of a single streamer line as specified in paragraph (e)(5)(iv)(B) of this section and one other device as specified in paragraph (e)(6) of this section must be used by vessels greater than 26 ft (7.9 m) LOA and less than or equal to 55 ft (16.8 m) LOA with masts, poles, or rigging.
(C) A minimum of a single streamer line of a standard as specified in paragraph (e)(5)(iv) of this section and one other device as specified in paragraph (e)(6) of this section must be used by vessels greater 55 ft (16.8 m) LOA with masts, poles, or rigging.
(iv) While fishing with hook-and-line gear other than snap gear for IFQ halibut, CDQ halibut, or IFQ sablefish, in waters shoreward of the EEZ, requirements as specified in paragraphs (e)(4)(ii) and (e)(8) must be used.
(5)
(i)
(ii)
(
(
(
(
(
(B)
(iii)
(B)
(C) Streamer lines must:
(
(
(
(
(
(
(
(iv)
(
(
(B)
(6)
(i) Add weights to groundline.
(ii) Use a buoy bag line or single streamer line, of standards as appropriate and as specified in paragraph (e)(5) of this section.
(iii) To distract birds away from the setting of baited hooks, discharge fish, fish parts (i.e. offal) or spent bait.
(7)
(i) Night-setting,
(ii) Line shooter, or
(iii) Lining tube.
(8)
Nothwithstanding any other paragraph in this part, operators of vessels 32 ft (9.8 m) LOA or less using hook-and-line gear in IPHC Area 4E in waters shoreward of the EEZ are exempt from seabird avoidance regulations.
(f) * * *
(5)
(b) * * *
(2)
(g) * * *
(1) * * *
(viii) * * *
(F) Collecting all seabirds that are incidentally taken on the observer-sampled portions of hauls using hook-and-line gear or as requested by an observer during non-sampled portions of hauls.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues a final rule to amend regulations governing the North Pacific Groundfish Observer Program (Observer Program). This action is necessary to provide added flexibility in the deployment of observers in the Exclusive Economic Zone (EEZ) off the coast of Alaska. This action is intended to ensure continued collection of high quality observer data. It is necessary to support the management objectives of the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs) and to promote the goals and objectives contained in those FMPs.
Effective on February 12, 2004.
Copies of the Final Regulatory Flexibility Analysis (FRFA) prepared for this regulatory action and the Environmental Assessment (EA) prepared for the Extension of the Interim North Pacific Groundfish Observer Program beyond 2002 may be obtained from the Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn: Lori Durall.
Jason Anderson, 907-586-7228 or
NMFS manages the U.S. groundfish fisheries of the Gulf of Alaska (GOA) and the Bering Sea and Aleutian Islands Management Area (BSAI) in the EEZ under the FMPs. The North Pacific Fishery Management Council (Council) prepared the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations implementing the FMPs appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.
The Council adopted, and NMFS approved and implemented, the Interim Groundfish Observer Program (Interim Program) in 1996 (61 FR 56425, November 1, 1996), which superseded the North Pacific Fisheries Research Plan (Research Plan). The requirements of the Interim Program were extended through 1998 (62 FR 67755, December 30, 1997), again through 2000 (63 FR 69024, December 15, 1998), again through 2002 (65 FR 80381, December 21, 2000), and again through 2007 (67 FR 72595, December 6, 2002). The Interim Program provides the regulatory framework for the collection by observers of data necessary for the conservation and management of the groundfish fisheries managed under the FMPs. Further, it authorizes mandatory observer coverage requirements for vessels and shoreside processors, and establishes vessel, processor, and observer provider responsibilities relating to the Observer Program.
A proposed rule to amend regulations governing housing requirements for observers deployed in the groundfish fisheries governed by the FMPs was published in the
A final rule to amend regulations governing observer coverage requirements for vessels and shoreside processors in the North Pacific Groundfish Fisheries was published in the
One letter of comment was received on the proposed rule that contained four unique comments. Comments are summarized and responded to here.
This final rule amends the observer provider responsibility regulations to allow an observer to be housed: (1) On a stationary floating processor; (2) on a vessel he or she will be assigned to; (3) on a vessel for 24 hours following the completion of an offload when the observer has duties and is scheduled to disembark; and (4) on a vessel for 24 hours following the vessel's arrival in port when the observer is scheduled to disembark. In addition, this final rule makes two additional revisions to the proposed rule.
Subsequent to publication of the January 7 final rule, Observer Program staff received comments from two separate observer providers concerned with their ability to effectively deploy observers under the current regulations at § 679.50(i)(2)(vi). In order to account for potential logistics problems, both observer providers described a common practice whereby observers are flown to their port of departure 3 or 4 days before the vessel is scheduled to depart. Flight cancellations and delays due to weather are common, so fishing companies often request that observers arrive prior to their anticipated departure date.
Observers often arrive at their assigned vessel and encounter delays in the vessel's departure. Vessel operators often are unable to predict exactly when they will be able to leave port for a fishing trip due to weather, mechanical failure, labor disputes, and other unanticipated problems. These delays result in periods of time when an observer may be housed on an assigned vessel that is not traveling to fishing grounds or actively involved in fishing. These circumstances were not considered when promulgating the January 7 final rule.
Current regulations at § 679.50(i)(2)(vi) prevent observers from being housed on an assigned vessel until 24 hours before its departure time. The intent of regulations at § 679.50(i)(2)(vi) is to avoid lodging an observer aboard a vessel on which he or she is not working or currently assigned. This action clarifies NMFS' intent by removing the 24 hour restriction and provides fishing operations increased flexibility to deal with these uncertainties, and observer providers improved opportunities to serve their customers.
This action also provides for housing observers aboard stationary floating processors. Current regulations at § 679.50(i)(2)(vi)(B) govern the housing requirements for observers assigned to shoreside processing facilities and for observers between vessel or shoreside assignments while still under contract to an observer provider. Observers commonly are deployed to stationary floating processors and catcher vessels delivering to stationary floating processors. Stationary floating processors often are in remote locations and observers commonly are housed on these stationary floating processors before, after, and in between catcher vessel assignments and while assigned to a stationary floating processor. This action extends the housing requirements to observers being deployed in these circumstances. Given the remoteness of these stationary floating processors, NMFS considers the practice of housing observers deployed to catcher vessels delivering to stationary floating processors reasonable. Accommodation requirements at § 679.50(i)(2)(vi)(B) for observers being housed on stationary floating processors are the same as those for a licensed hotel, motel, bed and breakfast, or other shoreside accommodation.
Further, this action clarifies two housing situations where the observer is scheduled to disembark the vessel. First, the observer could be housed on a vessel for up to 24 hours following the completion of an offload when the observer has duties and is scheduled to disembark after completing those duties. This accounts for assignments to catcher boats that target pollock, where the observer is required to monitor the offload for prohibited species. Second, the observer could be housed on a vessel for up to 24 hours following the vessel's arrival in port where the observer is scheduled to disembark. This accounts for assignments to all other vessels where the observer's duties are complete upon arrival to port.
This action amends current regulations at § 679.50(i)(2)(vi)(D) by removing unnecessary text. Existing regulations require that observers be provided housing within the standards outlined in the regulations. Therefore, alternative housing must be arranged if these standards are not met. The ancillary conditions previously contained in subparagraph (D) were interpretive and their removal does not change the intent of NMFS.
NMFS identified two necessary changes from the proposed rule to the final rule. Section 679.50(i)(2)(vi)(A)(2) is changed to provide consistency with terminology used in § 679.50(i)(2)(vi)(B) and (C). By changing text to require observer providers to provide lodging, per diem, and any other necessary services to observers assigned to vessels or shoreside or stationary floating processing facilities, the regulations are clarified and consistent with NMFS intent.
During review of the final rule, NMFS determined that § 679.50(i)(2)(vi)(C)(1) of the proposed rule was ambiguous. NMFS recognizes that there may be logistical difficulties in the deployment of an observer and departure of the vessel. Further, NMFS determined that vessels would only pay for an observer for those days necessary to coordinate the observer's logistics and the vessel's departure plans. This text is modified to allow an observer to be housed on a vessel to which he or she is assigned prior to that vessel's departure from port.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared a FRFA. The FRFA incorporates the IRFA and a summary of the analyses completed to support the action. A copy of this analysis is available from the NMFS (see
The proposed rule was published in the
For this action, the small regulated entities include: (1) Fishing vessels with observer coverage requirements and total gross annual revenues of less than $3.5 million from all the operation's commercial activity taken together; (2) processing facilities with observer coverage requirements and fewer than 500 employees, when all their affiliated operations, worldwide, are combined; (3) the Community Development Quota groups; and (4) observer providers. Therefore, small regulated entities could number about 350, although this number declines to about 215 if the catcher vessels in the American Fisheries Act pollock cooperatives are excluded, as the Regulatory Flexibility Act “affiliation” criteria suggest they appropriately be.
This regulation does not impose new recordkeeping or reporting requirements on the regulated small entities.
The preferred alternative does not have any adverse impacts on small entities. The effective impacts of the preferred alternative relative to the status quo are to (1) clarify the regulatory basis for the current practice of housing catcher vessel observers on floating processors between deployments, and (2) provide fishing operations and observer providers with the ability to efficiently deal with the uncertainties associated with departure from port, such as mechanical problems or adverse weather conditions, in a manner fully compliant with regulations. In general, the information on operating behavior and costs that would make it possible to predict how fishermen and markets will react to the new regulation, and how their costs and revenues will change, is not available. However, in qualitative terms, the impacts of the preferred alternative are beneficial.
The preferred alternative provides fishing operations with planning flexibility to deal with these uncertainties, and to give observer providers improved opportunities to serve their customers. The action would have an effect equivalent to the lengthening of a fishing trip. Observers would receive normal contracted compensation for the additional days. Regulations currently require vessels to provide food and accommodations to observers assigned to that vessel, just as they would for any other crew member. Since observers may not be housed on vessels they are not assigned to, vessels have an incentive to hire observers (and feed them) for only those days necessary for coordinating their departure from port.
The status quo is the alternative to the preferred action. The status quo was rejected because it would not accomplish the objectives of the action. This alternative decreases the observer provider's ability to effectively deploy observers. In order to account for possible weather delays and other potential logistics problems, observer providers often send observers to their port of departure prior to their assigned vessel's scheduled departure. The uncertainties associated with departure from port and the economic costs associated with this uncertainty make this alternative less desirable than the preferred alternative. Because this alternative results in adverse impacts to small entities, this alternative was rejected.
Alaska, Fisheries, Reporting and recordkeeping requirements.
16 U.S.C. 773
(i) * * *
(2) * * *
(vi) * * *
(A) * * *
(2) Lodging, per diem, and any other services necessary to observers assigned to fishing vessels or shoreside or stationary floating processing facilities.
(B) Except as provided in paragraphs (i)(2)(vi)(C) and (i)(2)(vi)(D) of this section, each observer deployed to a shoreside processing facility or stationary floating processor, and each observer between vessel, stationary floating processor or shoreside assignments while still under contract with a permitted observer provider, shall be provided with accommodations at a licensed hotel, motel, bed and breakfast, stationary floating processor, or other shoreside accommodations for the duration of each shoreside assignment or period between vessel or shoreside assignments. Such accommodations must include an assigned bed for each observer and no other person may be assigned that bed for the duration of that observer's stay. Additionally, no more than four beds may be in any room housing observers at accommodations meeting the requirements of this section.
(C) An observer under contract may be housed on a vessel to which he or she is assigned:
(
(
(
(D) During all periods an observer is housed on a vessel, the observer provider must ensure that the vessel operator or at least one crew member is aboard.
Office of Government Ethics (OGE).
Proposed rule amendments.
The Office of Government Ethics is proposing a plain language revision of its regulation concerning Certificates of Divestiture. The proposed rule also would revise certain procedures for issuing Certificates of Divestiture and the definition of permitted property into which proceeds of the sale of property are reinvested.
Comments are invited and must be received in writing on or before March 15, 2004.
Send comments to the Office of Government Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 20005-3917. Attention: Deborah J. Bortot. Comments also may be sent electronically to OGE's Internet E-mail address:
Deborah J. Bortot, Office of Government Ethics; Telephone: 202-482-9300; TDD: 202-482-9293; FAX: 202-482-9237.
Section 1043 of the Internal Revenue Code of 1986, 26 U.S.C. 1043, was enacted as part of the Ethics Reform Act of 1989 (Pub. L. 101-194). Section 1043 authorizes OGE to issue a Certificate of Divestiture to an eligible person who is divesting property in order to comply with a Federal conflict of interest law, regulation, rule, or Executive order, or if requested by a congressional committee as a condition of confirmation. A person who receives a Certificate of Divestiture may defer payment of capital gains tax as long as he or she timely purchases certain permitted property with the proceeds of the sale. OGE published an interim rule on April 18, 1990 (at 55 FR 14407-14409) implementing section 1043. On June 25, 1996, the Office of Government Ethics published a final rule at 61 FR 32633-32636. The final rule was based on comments to the interim rule and on OGE's experience under the interim rule and the May 1990 Technical Corrections to the Ethics Reform Act of 1989 (Pub. L. 101-280), which amended section 1043 of the Internal Revenue Code of 1986. The Certificates of Divestiture regulation is now codified at subpart J of 5 CFR part 2634. After reevaluating the regulation to see whether changes might be needed, OGE has decided to publish these proposed revisions to make certain improvements.
We are proposing to improve the current Certificates of Divestiture regulation by: Organizing the material more logically; using shorter sentences; eliminating unnecessary technical language; and stating the rule's requirements more clearly. We invite your comments as to whether this proposed rule would be easier to understand and how we could further improve its clarity. The following discussion summarizes the most important changes that OGE is proposing.
To add more harmony and uniformity to ethics program rules, OGE is proposing a change to the meaning of “diversified investment fund.” In order to qualify for deferral of capital gains, an eligible person must reinvest proceeds from the sale of property pursuant to a Certificate of Divestiture into “permitted property” during the 60-day period beginning on the date of such sale. “Permitted property” must consist only of obligations of the United States or “diversified investment funds.” Subpart J defines what constitutes a “diversified investment fund” for this purpose.
Proposed § 2634.1002 would change the meaning of a “diversified investment fund,” in paragraph (2) of the definition of permitted property, to track the definition of “diversified mutual fund” and “diversified unit investment trust” as those terms are used in 5 CFR 2640.102. However, similar to current § 2634.1003(a), proposed § 2634.1002 would continue to explain that ethics program requirements applicable to specific agencies and positions might, in some cases, limit the choices of “permitted property,” including the specific “diversified investment fund” in which an employee may reinvest.
Several changes are proposed that would streamline the procedures OGE uses to issue a Certificate of Divestiture. Unlike the current regulation, the proposed rule would permit an employee to submit a written request for a Certificate of Divestiture on behalf of another eligible person such as a spouse or minor child. Under proposed § 2634.1004(a)(3), the employee would have to state in the request that the eligible person holding the property required to be divested has agreed to divest the property.
Proposed § 2634.1004(b)(1) would clarify the information related to financial disclosure that OGE needs to receive as part of the Certificate of Divestiture request in the case of a Government employee who is not required to file a financial disclosure report. Whereas current § 2634.1002(b)(1)(ii)(B) refers generally to information required to be disclosed on a financial disclosure report, a parallel provision in proposed § 2634.1004(b)(1) would require an employee who does not file a financial disclosure report to submit a listing of the employee's interests that would be required to be disclosed on a confidential financial disclosure report excluding gifts and travel reimbursements. Further, while the current regulation is silent as to the timing and length of the period for reporting this information, the proposed rule would clarify that the reporting period is the preceding twelve months from the date the requirement to divest first applied or the date the employee first agreed that the property would be divested. In the case of an employee who is required to file a financial disclosure report, the proposed rule would continue to require that OGE receive a copy of the latest report filed by the employee. The submission of information related to financial disclosure ensures that OGE can determine whether the employee has
In addition, the proposed rule would simplify the procedure for issuing a Certificate of Divestiture where a congressional committee requests divestiture of the property as a condition of confirmation and the request is consistent with a custom of the committee. To substantiate the request of a committee, proposed § 2634.1004(c) would allow the designated agency ethics official to submit a statement that shows a custom of the committee requires the property be divested as a condition of confirmation.
Finally, the proposed rule would also simplify the procedure related to the timing of a submission of a request to OGE. OGE will continue to consider requests submitted beyond the applicable time period for divestiture. However, proposed § 2634.1004(e) would require the designated agency ethics official to provide OGE with an explanation for the delay if the request is not submitted within the applicable time period specified in proposed § 2634.1004(e).
Interested persons are invited to submit written comments to OGE on this proposed regulation, to be received on or before March 15, 2004. The Office of Government Ethics will review all comments received and consider any modifications to this rule as proposed which appear warranted before adopting the final rule on this matter.
In promulgating this proposed rule, the Office of Government Ethics has adhered to the regulatory philosophy and the applicable principles of regulation set forth in section 1 of Executive Order 12866, Regulatory Review and Planning. In addition, these proposed amendments have been reviewed by the Office of Management and Budget under that Executive order. Moreover, in accordance with section 6(a)(3)(B) of E.O. 12866, the preamble to these proposed revisions, to be codified once finalized in a revised subpart J of 5 CFR part 2634, notes the legal basis and benefits of as well as the need for the regulatory action. There should be no appreciable increase in costs to OGE or the executive branch of the Federal Government in administering this regulation, once finalized, since the proposed provisions would only clarify and improve the Certificates of Divestiture regulatory procedures. Finally, this proposed rulemaking is not economically significant under the Executive order and will not interfere with State, local or tribal governments.
As Director of the Office of Government Ethics, I have reviewed this proposed amendatory regulation in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.
As Director of the Office of Government Ethics, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this proposed amendatory rule will not have a significant economic impact on a substantial number of small entities because it primarily affects Federal executive branch employees and members of their immediate families.
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply to this proposed amended regulation because it does not contain any information collection requirements that require the approval of the Office of Management and Budget.
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), this proposed rule will not significantly or uniquely affect small governments and will not result in increased expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation) in any one year.
The Office of Government Ethics has determined that this proposed rulemaking involves a nonmajor rule under the Congressional Review Act (5 U.S.C. chapter 8) and will, before the future final rule takes effect, submit a report thereon to the U.S. Senate, House of Representatives and General Accounting Office in accordance with that law.
Certificates of divestiture, Conflict of interests, Financial disclosure, Government employees, Penalties, Privacy, Reporting and recordkeeping requirements, Trusts and trustees.
Accordingly, for the reasons set forth in the preamble, the Office of Government Ethics proposes to amend subpart J of 5 CFR part 2634 as follows:
1. The authority citation for part 2634 continues to read as follows:
5 U.S.C. App. (Ethics in Government Act of 1978); 26 U.S.C. 1043; Pub. L. 101-410, 104 Stat. 890, 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990), as amended by Sec. 31001, Pub. L. 104-134, 110 Stat. 1321 (Debt Collection Improvement Act of 1996); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.
2. Subpart J of part 2634 is revised to read as follows:
(a)
(b)
(c)
For purposes of this subpart:
(1) Any officer or employee of the executive branch of the Federal Government, except a person who is a special Government employee as defined in 18 U.S.C. 202;
(2) The spouse or any minor or dependent child of the individual referred to in paragraph (1) of this definition; and
(3) Any trustee holding property in a trust in which an individual referred to in paragraph (1) or (2) of this definition has a beneficial interest in principal or income.
(1) An obligation of the United States; or
(2) A diversified investment fund. A diversified investment fund is a diversified mutual fund or diversified unit investment trust, as defined in 5 CFR 2640.102(a), (k) and (u);
(3) Provided, however, a permitted property cannot be any holding prohibited by statute, regulation, rule, or Executive order. As a result, requirements applicable to specific agencies and positions may limit an eligible person's choices of permitted property. An employee seeking a Certificate of Divestiture should consult the appropriate designated agency ethics official to determine whether a statute, regulation, rule, or Executive order may limit choices of permitted property.
The Director of the Office of Government Ethics may issue a Certificate of Divestiture for specific property in accordance with the procedures of § 2634.1004 of this subpart if the Director determines that divestiture of the property by an eligible person is reasonably necessary to comply with 18 U.S.C. 208, or any other Federal conflict of interest statute, regulation, rule, or Executive order, or if divestiture is required by a congressional committee as a condition of confirmation. A Certificate of Divestiture cannot be issued for property that already has been sold.
An employee is directed to divest shares of stock, a limited partnership interest, and foreign currencies. If the sale of these assets will result in capital gains under the Internal Revenue Code, the employee may request and receive a Certificate of Divestiture.
An employee of the Department of Commerce is directed to divest his shares of XYZ stock acquired through the exercise of options held in an employee benefit plan. His gain from the sale of the stock will be treated as ordinary income. Because only capital gains realized under Federal tax law are eligible for deferral under section 1043, a Certificate of Divestiture cannot be issued for the sale of the XYZ stock.
During her Senate confirmation hearing, a nominee to a Department of Defense (DOD) position is directed to divest stock in a DOD contractor as a condition of her confirmation. Eager to comply with the order to divest, the nominee sells her stock immediately after the hearing and prior to being confirmed by the Senate. Once she is a DOD employee, she requests a Certificate of Divestiture for the stock. Because the Office of Government Ethics cannot issue a Certificate of Divestiture for property that has already been divested, the employee's request for a Certificate of Divestiture will be denied.
After receiving a Certificate of Divestiture, the spouse of a Food and Drug Administration employee sold stock in a regulated company. Between the time of the request for the Certificate of Divestiture and the sale of the stock, the stock price dropped and the spouse sold the stock at a loss. Because the sale of the stock did not result in capital gains, the spouse has no need for the Certificate of Divestiture and cannot submit it to the Internal Revenue Service for deferral of gains. No further action need be taken by the employee or the employee's spouse in connection with the Certificate of Divestiture.
(a)
(1) A full and specific description of the property that will be divested. For example, if the property is corporate stock, the request must include the number of shares for which the eligible person seeks a Certificate of Divestiture;
(2) A brief description of how the eligible person acquired the property;
(3) A statement that the eligible person holding the property has agreed to divest the property; and
(4)(i) The date that the requirement to divest first applied; or
(ii) The date the employee first agreed that the eligible person would divest the property in order to comply with conflict of interest requirements.
(b)
(1) A copy of the employee's latest financial disclosure report. If the employee is not required to file a financial disclosure report, the designated agency ethics official must obtain from the employee, and submit to the Office of Government Ethics, a listing of the employee's interests that would be required to be disclosed on a confidential financial disclosure report excluding gifts and travel reimbursements. For purposes of this listing, the reporting period is the preceding twelve months from the date the requirement to divest first applied or the date the employee first agreed that the eligible person would divest the property;
(2) An opinion that describes why divestiture of the property is reasonably necessary to comply with 18 U.S.C. 208, or any other Federal conflict of interest statute, regulation, rule, or Executive order; and
(3) A brief description of the employee's position or a citation to a statute that sets forth the duties of the position.
(c)
(d)
An employee has a 90% beneficial interest in an irrevocable trust created by his grandfather. His four adult children have the remaining 10% beneficial interest in the trust. A number of the assets held in the trust must be sold to comply with conflicts of interest requirements. Due to State law, no action can be taken to separate the trust assets. Because the adult children have a small interest in the trust and the assets cannot be separated, the Director may consider issuing a Certificate of Divestiture to the trustee for the sale of all of the conflicting assets.
(e)
(f)
(a)
A recently hired employee of the Department of Transportation receives a Certificate of Divestiture for the sale of a large block of stock in an airline. He may split the proceeds of the sale and reinvest them in an S&P Index Fund, a diversified Growth Stock Fund, and U.S. Treasury bonds.
The Secretary of Treasury sells certain stock after receiving a Certificate of Divestiture and is considering reinvesting the proceeds from the sale into U.S. Treasury securities. However, because the Secretary of the Treasury is prohibited by 31 U.S.C. 329 from being involved in buying obligations of the United States Government, the Secretary cannot reinvest the proceeds in such securities. However, she may invest the proceeds in a diversified mutual fund. See the definition of
(b)
The Director of the Office of Government Ethics, in his or her sole discretion, may deny a request for a Certificate of Divestiture in cases where an unfair or unintended benefit would result. Examples of such cases include:
(a)
(b)
A new senior official at the Federal Aviation Administration owns stock in several airlines. The official is expected to participate in a matter dealing with the imposition of new safety standards on commercial airlines. The employee must divest his interest in all of the airline stock that exceeds the amounts he is permitted to retain under the exemptions to 18 U.S.C. 208, which are described at 5 CFR part 2640.
A Department of Agriculture employee owns shares of stock in Better Workspace, Inc. valued at $25,000. As part of his official duties, the employee is assigned to evaluate bids for a contract to renovate office space at his agency. The Department's designated agency ethics official discovers that Better Workspace is one of the companies that has submitted a bid and directs the employee to sell his stock in the company. Because Better Workspace is a publicly traded security, the employee could retain up to $15,000 of the stock under the regulatory exemption for interests in securities at 5 CFR 2640.202(a). He would be able to request a Certificate of Divestiture for the $10,000 of Better Workspace stock that is not covered by the exemption. Alternatively, he could request a Certificate of Divestiture for the entire $25,000 worth of stock. If he chooses to sell his stock down to an amount permitted under the regulatory exemption, the Office of Government Ethics will not issue additional Certificates of Divestiture if the value of the stock goes above $15,000 again.
(c)
(1) If the eligible person acquired the property at a time when its acquisition was prohibited by statute, regulation, rule, or Executive order; or
(2) If circumstances would otherwise create the appearance of a conflict with the conscientious performance of Government responsibilities.
A Certificate of Divestiture issued pursuant to the provisions of this subpart is available to the public in accordance with the rules of § 2634.603 of this part.
Agricultural Marketing Service, USDA.
Proposed termination of order.
This document invites written comments on the proposed termination of the order regulating the handling of milk in the Western marketing area. A proposal amending the Western order failed to receive the required two-thirds
Comments are due on or before February 12, 2004.
Gino M. Tosi, Marketing Specialist, Order Formulation and Enforcement Branch, USDA/AMS/Dairy Programs, Room 2971—Stop 0231, 1400 Independence Avenue, SW., Washington, DC 20250-0231, (202) 690-1366, e-mail address:
The Department is issuing this proposed action in conformance with Executive Order 12866.
This proposed termination has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have a retroactive effect. If adopted, this proposed action will not preempt any state or local laws, regulations, or policies, unless they present an irreconcilable conflict with the action.
The Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may request modification or exemption from such order by filing with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with the law. A handler is afforded the opportunity for a hearing on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has its principal place of business, has jurisdiction in equity to review the Secretary's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601
In the Western Federal milk order 550 of the 860 dairy producers (farmers), or 64 percent, whose milk was pooled under the order in June 2003 would meet the definition of small businesses. On the processing side, 15 of the 42 milk plants or 36 percent associated with the Western milk order during June 2003 would qualify as “small businesses”.
Interested parties are invited to submit comments on the probable regulatory and informational impact of this proposed action on small entities.
Notice is hereby given that, pursuant to the provisions of the Agricultural Marketing Agreement Act, the termination of the order regulating the handling of milk in the Western marketing area is being considered.
All persons who want to send written data, views, or arguments about the proposed termination should send two copies to the USDA/AMS/Dairy Division, Order Formulation and Enforcement Branch Room 2971—Stop 0231, 1400 Independence Avenue, SW., Washington, DC 20250-0231, by the 30th day after the publication of this notice in the
The comments that are received will be made available for public inspection in the Dairy Division during normal business hours (7 CFR 1.27 (b)).
The proposed action would terminate the order regulating the handling of milk in the Western marketing area.
On August 8, 2003, the Department issued a tentative final decision on proposed amendments to the Western Federal milk order, which was published August 18, 2003 (68 FR 49375). The document was then followed by a referendum order for the Western marketing area to ascertain whether producers supplying that market approve the issuance of the proposed amended order.
The enabling statute requires that at least two-thirds of the producers (measured in terms of either number or volume) voting in a referendum must approve the issuance of a order before it can be put into effect. Less than two-thirds percent of the voting producers in the referendum approved the issuance of the proposed amended order for the Western marketing area. In these circumstances, where it has been concluded that the order should be amended to effectuate the declared policy of the enabling statute and that the amended order was not approved by producers, it appears that continuation of the existing Western order would not be in conformity with the applicable statutory authority. Therefore, it is necessary to consider terminating the present order.
The period for filing comments is limited to 30 days because a longer period would not provide the time needed to complete the required procedures before and coordinate the termination with amendatory action being taken on milk orders for neighboring markets.
Milk marketing orders.
7 U.S.C. 601-674.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Commander, Fifth Coast Guard District, is proposing to change the regulations that govern the operation of the SR 175 drawbridge across the Chincoteague Channel, mile 3.5, at Chincoteague, Virginia. These regulations are necessary to facilitate public safety during the Annual Pony Swim. This proposed change to the drawbridge operation schedule will allow the Chincoteague Channel Bridge to remain in the closed position from 7 a.m. to 5 p.m. on the last Wednesday and Thursday in July of every year.
Comments and related material must reach the Coast Guard on or before March 15, 2004.
You may mail comments and related material to the Commander (oan-b), Fifth Coast Guard District, Federal Building, 4th Floor, 431 Crawford Street, Portsmouth, Virginia 23703-5004. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the above address between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Linda L. Bonenberger, Bridge Management Specialist, Fifth Coast Guard District, at (757) 398-6227.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD05-03-168), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.
We do not plan to hold a public meeting. But you may submit a request for a meeting by writing to the Commander, Fifth Coast Guard District at the address under
The Town of Chincoteague has requested a change from the current operating regulation set out in 33 CFR 117.5 that requires the drawbridge to open promptly and fully for the passage of vessels when a request to open is given.
The purpose of the change is to accommodate the Pony Swim across the Assateague Channel between Assateague Island and Chincoteague Island that takes place every year on the last Wednesday and Thursday in July. The herd is owned by the Chincoteague Volunteer Fire Department and managed by the National Park Service. This annual event began in the 1700's, but in 1925 the Fire Department took over the event that is also referred to as the Chincoteague Volunteer Fireman's Carnival. The proceeds from the auctioning of the ponies provide a source of revenue for the fire company and it also serves to trim the herd's numbers. On Wednesdays, the ponies are led across the Assateague Channel from Assateague Island to Chincoteague where they are auctioned off. On Thursdays, the remaining ponies are led back across the channel to Assateague Island.
Due to the high volume of spectators that attend this yearly event, it is necessary to close the draw span on each of these days between the hours of 7 a.m. to 5 p.m. This will reduce vehicular traffic congestion and increase public safety on this small island as a result of drawbridge openings where the SR 175 bridge is the only access.
The proposed change would allow the Chincoteague Channel Bridge to remain in the closed position each year from 7 a.m. to 5 p.m. on the last Wednesday and Thursday of July.
Since the Pony Swim is a well-known annual event, and is publicly advertised, vessel operators can arrange their transits to minimize any impact caused by the closure. Vessel operators with mast heights lower than 15 feet still can transit through the fixed bridge across Chincoteague Channel during this event since only the bridge is closed and not the waterway. The Atlantic Ocean is the only alternate route for vessels with a mast height greater than 15 feet.
We propose to change the current operating regulation set out in 33 CFR 117.5 that requires the drawbridge to open on demand for the passage of vessels when a request to open is given. A new section, 117.1005, would be inserted and allow the bridge to remain closed to vessel traffic from 7 a.m. to 5 p.m. on the last Wednesday and Thursday in July of every year.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).
We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.
This conclusion was based on the fact that the proposed change will have a very limited impact on maritime traffic transiting this area. Since the Chincoteague Channel will remain open to navigation during this event, mariners with mast height less than 15 feet may still transit through the bridge and vessels with mast height greater than 15 feet can use the Atlantic Ocean to the west or transit after the closed hours.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
The proposed rule would not have a significant economic impact on a substantial number of small entities because even though the rule closes the Chincoteague Channel bridge to mariners, those with mast heights less than 15 feet will still be able to transit through the bridge during the closed hours and mariners whose mast heights are greater than 15 feet will be able to use the Atlantic Ocean as an alternate route or transit after the closed hours.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1966 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Waverly
This proposed rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in section 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
We have analyzed this proposed rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this proposed rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation. Allowing the draw to remain closed for vessels at the times indicated on the last Wednesday and Thursday in July of every year would have no individually or cumulatively significant impact on the environment.
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:
1. The authority citation for part 117 continues to read as follows:
33 U.S.C. 499, Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039.
2. § 117.1005 is added to read as follows:
The draw of the SR 175 bridge, mile 3.5 at Chincoteague need not open for the passage of vessels from 7 a.m. to 5 p.m. on the last Wednesday and Thursday in July of every year.
Fish and Wildlife Service, Interior.
Proposed rule; reopening of comment period.
We, the U.S. Fish and Wildlife Service, announce the reopening of the comment period for the proposed rule to designate critical habitat for 11 mussels in the Mobile River Basin under the Endangered Species Act of 1973, as amended (Act). The comment period is being reopened to provide notification to Clay, Elmore, Lee, and Lowndes Counties, Alabama, and to allow all interested parties another opportunity to comment on the proposed rule and the associated draft economic analysis. Comments previously submitted need not be resubmitted and will be fully considered in the final determination of the proposal.
The comment period is hereby reopened until January 23, 2004. We must receive comments on the proposal and draft economic analysis from all interested parties by the closing date. Any comments that we receive after the closing date will not be considered in the final rule.
Copies of the proposed designation and draft economic analysis are available on the Internet at
Written comments and materials concerning the proposal or draft economic analysis may be submitted to us by any one of several methods:
1. You may submit written comments and information to the Field Supervisor, U.S. Fish and Wildlife Service, 6578 Dogwood View Parkway, Suite A, Jackson, MS 39213.
2. You may hand-deliver written comments and information to our Mississippi Field Office, at the above address, or fax your comments to 601/965-4340.
3. You may send comments by electronic mail (e-mail) to
Comments and materials received, as well as supporting documentation used in preparation of this proposed rule, will be available for public inspection, by appointment, during normal business hours at the above address.
Paul Hartfield, Mississippi Field Office, at the above address (telephone 601/321-1125, facsimile 601/965-4340).
We listed the fine-lined pocketbook, orange-nacre mucket, and Alabama moccasinshell as threatened species, and the Coosa moccasinshell, ovate clubshell, southern clubshell, dark pigtoe, southern pigtoe, triangular kidneyshell, upland combshell, and southern acornshell as endangered species under the Act on March 17, 1993 (58 FR 14330).
On March 26, 2003, we published in the
Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species. Consequently, we prepared a draft economic analysis concerning the proposed critical habitat designation, which is available for review and comment (see
Section 4(b)(5) of the Act requires that we give actual notice of the proposed regulation to the States and to each county in which the species are believed to occur.
Following closure of the second comment period on October 14, 2003, we became aware that we had failed to directly notify four of the counties affected by the proposed critical habitat designation. Therefore, we have provided the regulation to Clay, Elmore, Lee, and Lowndes Counties, Alabama, and reopened the comment period until the date specified above in DATES, to allow all interested parties another opportunity to comment on the proposed rule and the associated draft economic analysis. Legal notices announcing the reopening of the comment period are being published in newspapers concurrently with this
We are soliciting comments and information from the public, governmental agencies, the scientific community, industry, or any other interested party on any aspects of the proposed designation of critical habitat for the 11 Mobile River Basin mussels or the draft economic analysis. The comment period for both the proposed rule and the draft economic analysis now closes on the date specified above in
Please submit electronic comments as an ASCII file format and avoid the use of special characters and encryption. Please also include “Attn: RIN 1018-AI73” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, contact us directly by calling our Mississippi Field Office (see
Our practice is to make all comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. In some circumstances, we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this prominently at the beginning of your comments. 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 primary author of this notice is Paul Hartfield (see
The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531
Foreign Agricultural Service, USDA.
Notice.
The Administrator, Foreign Agricultural Service (FAS), today denied a petition for trade adjustment assistance (TAA) that was filed on December 4, 2003, by the U.S. Rice Producers Association, Houston, Texas.
Upon investigation, the Administrator determined that increasing imports of rice did not contribute importantly to the decline in domestic producer prices during the August 2002—July 2003 marketing year. Key factors contributing to the decline, according to an investigation conducted for the Administrator, were the growth in U.S. production and increased carry-in stocks of U.S.-produced rice. Increases in rice imports had only a minimal impact on the decline in domestic producer prices, because most imports are varieties of rice not produced in the United States and thus not directly competitive with U.S. rice production.
Jean-Louis Pajot, Coordinator, Trade Adjustment Assistance for Farmers, FAS, USDA, (202) 720-2916, E-mail:
Forest Service, USDA.
Notice of meeting.
The Trinity County Resource Advisory Committee (RAC) will meet on February 2, 2004 in Weaverville, California. The purpose of the meeting is to discuss the selection of Title II projects under Pub. L. 106-393, H.R. 2389, the Secure Rural Schools and Community Self-Determination Act of 2000, also called the “Payments to States” Act.
The meeting will be held on February 2, 2004 from 6:30 to 8:30 p.m.
The meeting will be held at the Trinity County Public Utilities District Conference Room, 26 Ponderosa Lane, Weaverville, California.
Joyce Andersen, Designated Federal Official, USDA, Shasta Trinity National Forests, P.O. Box 1190, Weaverville, CA 96093. Phone: (530) 623-1709. E-mail:
The meeting will focus on developing a strategy for selecting Title II projects for implementation in Fiscal Year 2005. There will also be brief presentations about the Healthy Forests Restoration Act and Stewardship contracting. The meeting is open to the public. Public input opportunity will be provided and individuals will have the opportunity to address the committee at that time.
Forest Service, USDA.
Meeting notice for the Ouachita-Ozark Resource Advisory Committee under Section 205 of the Secure Rural Schools and Community Self Determination Act of 2000 (Pub. L. 106-393.
This notice is published in accordance with section 10(a)(2) of the Federal Advisory Committee Act. Meeting notice is hereby given for the Ouachita-Ozark Resource Advisory Committee pursuant to Section 205 of the Secure Rural Schools and Community Self Determination Act of 2000, Public Law 106-393. Topics to be discussed include: Scott County Title II projects and next meeting dates and agendas.
The meeting will be held on January 29, 2004, beginning at 6 p.m. and ending at approximately 9 p.m.
The meeting will be held at the Scott County Courthouse, 100 W. First Street, Waldron, AR 71958.
Caroline Mitchell, Committee Coordinator, USDA, Ouachita National Forest, P.O. Box 1270, Hot Springs, AR 71902. (501-321-5318).
The meeting is open to the public. Committee discussion is limited to Forest Service staff, Committee members, and elected officials. However, persons who wish to bring matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. A public input session will be provided and individuals who made written requests by January 28, 2004, will have the opportunity to address the committee at that session. Individuals wishing to speak or propose agenda items must send their names and proposals to Bill Pell, DFO, P.O. Box 1270, Hot Springs, AR 71902.
Grain Inspection, Packers and Stockyards Administration, USDA.
Notice.
We are deposting four stockyards. These facilities can no longer be used as stockyards and, therefore, are no longer required to be posted.
January 13, 2004.
The Grain Inspection, Packers and Stockyards Administration (GIPSA) administers and enforces the Packers and Stockyards Act of 1921, as amended and supplemented (7 U.S.C. 181—229) (P&S Act). The P&S Act prohibits unfair, deceptive, and fraudulent practices by livestock market agencies, dealers, stockyard owners, meat packers, swine contractors, and live poultry dealers in the livestock, poultry, and meatpacking industries.
Section 302 of the P&S Act (7 U.S.C. 202) defines the term “stockyard” as follows:
* * * any place, establishment, or facility commonly known as stockyards, conducted, operated, or managed for profit or nonprofit as a public market for livestock producers, feeders, market agencies, and buyers, consisting of pens, or other inclosures, and their appurtenances, in which live cattle, sheep, swine, horses, mules, or goats are received, held, or kept for sale or shipment in commerce.
Section 302(b) of the P&S Act requires the Secretary to determine which stockyards meet this definition, and to notify the owner of the stockyard and the public of that determination by posting a notice in each designated stockyard. After giving notice to the stockyard owner and to the public, the stockyard is subject to the provisions of Title III of the P&S Act (7 U.S.C. 201-203 and 205-217a) until the Secretary deposts the stockyard by public notice.
We depost a stockyard when the facility can no longer be used as a stockyard. Some of the reasons a facility can no longer be used as a stockyard include: the facility has been moved and the posted facility is abandoned, the facility has been torn down or otherwise destroyed, such as by fire, the facility is dilapidated beyond repair, or the facility has been converted and its function changed.
This document notifies the public that the following four stockyards no longer meet the definition of stockyard and that we are deposting the facilities.
This notice is effective upon publication in the
7 U.S.C. 202.
Rural Utilities Service, USDA.
Notice of intent to hold public scoping meetings and prepare an environmental impact statement.
The Rural Utilities Service (RUS) intends to hold public scoping meetings and prepare an environmental impact statement (EIS) in connection with possible impacts related to a project being proposed by Dairyland Power Cooperative, Inc. (DPC), of La Crosse, Wisconsin. The proposal consists of the construction and operation of a coal-fired electric generation facility, consisting of a single 400 Megawatt (MW) unit, at a site in Mitchell or Chickasaw Counties, Iowa.
RUS will conduct the public scoping meetings in an open-house format on January 28, 2004, from 3 p.m. to 7 p.m., at the Pinicon Restaurant, Highway 63 and 18 South, in New Hampton, Iowa, and on January 29, 2004, from 3 p.m. to 7 p.m., at the First Lutheran Church, 212 North Main Street, in St. Ansger, Iowa.
Nurul Islam, Environmental Protection Specialist, RUS, Engineering and Environmental Staff, 1400 Independence Avenue, SW., Stop 1571, Washington, DC 20250-1571, telephone: (202) 720-1414 or e-mail:
DPC proposes to construct and operate a 400 MW coal-fired electric generation facility at one of two sites in northeast Iowa. The Otranto site is located approximately 6 miles north of St. Ansgar in Mitchell County. The New Hampton site is located approximately 4 miles east of New Hampton in Chickasaw County. Construction of the project will require interconnection with existing electric transmission lines, the upgrade of existing electric transmission lines and/or the construction of new electric transmission lines. The schedule developed by DPC would place the facility in commercial operation by the spring of 2009. Alternatives to be considered by RUS include no action, purchased power, load management, renewable energy sources, distributed generation, and alternative site locations. Comments regarding the proposed project may be submitted (orally or in writing) at the public scoping meetings or in writing within 30 days after the January 29, 2004, meeting to RUS at the address provided in this notice.
The DPC and their consultants have prepared an alternatives evaluation and a site selection study for the proposed project. The studies are available for public review at RUS or DPC, at the addresses provided in this notice. These studies are also available at the public libraries in St. Ansgar and New Hampton. Please consult local notices for locations.
From information provided in the studies mentioned above, input that
Any final action by RUS related to the proposed project will be subject to, and contingent upon, compliance with all relevant Federal, State and local environmental laws and regulations and completion of the environmental review requirements as prescribed in the RUS Environmental Policies and Procedures (7 CFR part 1794).
The January 14, 2004, public meeting of the Chemical Safety and Hazard Investigation Board in connection with its investigation into the cause of a deadly explosion and the leakage of 26,000 pounds of aqua ammonia into the atmosphere from the DD Williamson & Co., Inc. plant in Louisville, Kentucky, has been cancelled. The public meeting had been scheduled to begin at 9:30 a.m. local time on January 14, 2004, at the Galt House, 140 North Fourth Street, Louisville, KY. The original
Due to the recent receipt of new information relevant to the investigation and the need to conduct further inquiry, the Board (Merritt, Poje, Bresland, and Medina) has unanimously voted to cancel the meeting scheduled for January 14, 2004, and to reschedule it for a later date.
The DD Williamson incident occurred at 2:10 a.m. on Friday, April 11, 2003, when a vessel explosion at the DD Williamson plant killed an operator and caused extensive damage to the western end of the facility. As a consequence of the explosion, 26,000 pounds of aqua ammonia (29.4% ammonia solution in water) leaked into the atmosphere, forcing the evacuation of 26 residents. The DD Williamson plant employs approximately 45 people and is located in a mixed industrial and residential neighborhood approximately 1.5 miles east of downtown Louisville.
For more information, please contact Raymond Porfiri at the Chemical Safety and Hazard Investigation Board at (202) 261-7600, or visit our Web site at:
Notice is hereby given that the application of the Board of Harbor Commissioners of the City of Los Angeles, grantee of FTZ 202, for authority to expand and reorganize FTZ 202 in the Los Angeles, California, area (Doc. 54-2002, 67 FR 72643, 12/6/02, and as amended, 68 FR 17342, 4/9/03), has been further amended to include a parcel (0.39 acres, 10,833 sq. ft. bldg.) at the Howard Hartry, Inc. facility as part of Site 1 at the Port of Los Angeles Harbor complex and to include a parcel (2.53 acres, 110,092 sq. ft. bldg.) at the Exel Global Logistics, Inc. facility as part of Site 2 at the Los Angeles International Airport. The application otherwise remains unchanged.
Comments on the change may be submitted to the Foreign-Trade Zones Board, U.S. Department of Commerce, FCB—Suite 4100W, 1401 Constitution Avenue, NW., Washington, DC 20230, by January 30, 2004.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to expand FTZ 2, as amended, is approved, subject to the Act and the Board's regulations, including Section 400.28.
Attest:
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to expand FTZ 93 is approved, subject to the Act and the Board's regulations, including Section 400.28.
Attest:
Import Administration, International Trade Administration, Department of Commerce.
Notice of Preliminary Results and Rescission in Part of the Antidumping Duty Administrative Review of Certain Cased Pencils from the People's Republic of China.
The Department of Commerce (the Department) has preliminarily determined that sales by the respondents in this review, covering the period December 1, 2001, through November 30, 2002, have been made at prices less than normal value (NV). In addition, we are rescinding this review with respect to Guangdong Stationery & Sporting Goods Imports & Export Co., Ltd. (GSSG) because GSSG withdrew its request for an administrative review in a timely manner and no other interested party requested a review of GSSG. Furthermore, we are preliminarily rescinding this review with respect to Tianjin Custom Wood Processing Co., Ltd. (TCW) because TCW reported, and the Department confirmed, that it made no shipments of subject merchandise to the United States during the period of review (POR). If these preliminary results are adopted in the final results of this review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. The Department invites interested parties to comment on these preliminary results.
January 13, 2004.
Paul Stolz, Christopher Zimpo or Magd Zalok, AD/CVD Enforcement, Office 4, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230; telephone (202) 482-4474, (202) 482-2747 and (202) 482-4162, respectively.
The POR is December 1, 2001 through November 30, 2002.
On December 2, 2002, the Department published in the
On December 27, 2002, in accordance with 19 C.F.R. §351.213(b), a PRC exporter, Shandong Rongxin Import and Export Co., Ltd. (Rongxin), and a PRC producer of pencils, Laizhou City Guangming Pencil-Making Co., Ltd., requested an administrative review of the order on certain cased pencils from the PRC. On December 30, 2002, the Writing Instrument Manufacturers Association, a trade association composed of domestic pencil producers, and Sanford Corporation; Tennessee Pencil Company, Musgrave Pencil Company, Moon Products, Inc., and General Pencil Company (collectively, the petitioners), requested that the Department conduct an administrative review of exports of subject merchandise made by 12 producers/exporters.
The Department published a notice announcing its initiation of an antidumping duty administrative review covering the exports of the above-referenced companies during the POR.
On January 15, 2003, we issued antidumping duty questionnaires to the exporters/producers subject to this review. In its February 21, 2003 response to the Department's questionnaire, TCW stated that it did not export subject merchandise to the United States during the POR. On February 26, 2003, within 90 days of publication of the notice of initiation for this review, GSSG withdrew its request for an administrative review. CFP/Three Star, SFTC and Rongxin submitted timely questionnaire responses. The remaining exporters/producers did not submit questionnaire responses and did not request that we extend the applicable deadlines for doing so.
Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act),
The Department is conducting this administrative review in accordance with section 751 of the Act.
Imports covered by this order are shipments of certain cased pencils of any shape or dimension (except as noted below) which are writing and/or drawing instruments that feature cores of graphite or other materials, encased in wood and/or man-made materials, whether or not decorated and whether or not tipped (
Although the HTSUS subheading is provided for convenience and customs purposes our written description of the scope of the order is dispositive.
We are preliminarily rescinding this review with respect to TCW and Laizhou because they made no shipments of subject merchandise to the United States during the POR. The Department reviewed CBP data which indicate that these companies did not export subject merchandise to the United States during the POR.
In addition, we are rescinding this review with respect to GSSG because this company withdrew its request for review and no other interested party requested a review of GSSG. Pursuant to 19 C.F.R. §351.213(d)(1), the Department will rescind an administrative review, in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of the notice announcing initiation of the requested review. GSSG withdrew its request for review within the 90 day time limit. Accordingly, we are rescinding the administrative review of GSSG's exports of subject merchandise for the period December 1, 2001, through November 30, 2002, and will issue appropriate assessment instructions to CBP.
As provided in section 782(i) of the Act, during August and September 2003, the Department conducted a verification of CFP/Three Star. During the verification of CFP/Three Star, the Department followed standard procedures in order to test the information submitted by the respondent. These procedures include on-site inspection of the manufacturers' facilities, examination of relevant sales and financial records, and selection of relevant source documentation as exhibits. Our verification findings are in the report: Verification of the Questionnaire Responses of China First Pencil Co., Ltd./Shanghai Three Star Stationery Industry Corp. in the 2001 - 2002 Administrative Review of Certain Cased Pencils from the People's Republic of China (Verification Report), the public version of which is on file in the Department's Central Records Unit, room B099, of the main Commerce building (CRU-Public File).
In proceedings involving nonmarket economy (NME) countries, the Department begins with a rebuttable presumption that all companies within the country are subject to governmental control and thus should be assessed a single antidumping duty deposit rate. It is the Department's policy to assign all exporters of merchandise subject to investigation in a NME country this single rate, unless an exporter can demonstrate that its export activities are sufficiently independent so that it should be granted a separate rate. Rongxin, CFP/Three Star and SFTC provided the separate rates information requested by the Department and reported that their export activities are not subject to governmental control.
We examined the separate rates information provided by Rongxin, CFP/Three Star and SFTC in order to determine whether the companies are eligible for a separate rate. The Department's separate rates test, which is used to determine whether an exporter is independent from governmental control, does not consider, in general, macroeconomic/border-type controls,
To establish whether a firm is sufficiently independent from governmental control of its export activities so as to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising out of the
The Department considers the following
Rongxin, CFP/Three Star and SFTC reported that the merchandise under
The Department typically 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.
Rongxin, CFP/Three Star and SFTC reported that they determine prices for sales of the subject merchandise based on market principles, the cost of the merchandise, and profit. Moreover, Rongxin, CFP/Three Star and SFTC stated that they negotiated the price directly with their customers. Also, Rongxin, CFP/Three Star and SFTC claimed that their prices are not subject to review or guidance from any governmental organization. In addition, the record indicates that Rongxin, CFP/Three Star and SFTC have the authority to negotiate and sign contracts and other agreements. Further, Rongxin, CFP/Three Star and SFTC claimed that their negotiations are not subject to review or guidance from any governmental organization. Finally, there is no evidence on the record to suggest that there is any governmental involvement in the negotiation of their contracts.
Furthermore, Rongxin, CFP/Three Star and SFTC reported that they have autonomy in making decisions regarding the selection of management. Rongxin, CFP/Three Star and SFTC indicated that their selection of management is not subject to review or guidance from any governmental organization and there is no evidence on the record to suggest that there is any governmental involvement in the selection of the management of Rongxin, CFP/Three Star and SFTC .
Finally, Rongxin, CFP/Three Star and SFTC reported that they retain the proceeds of their export sales, and their management determines how to use profits. There is no evidence on the record with respect to Rongxin, CFP/Three Star and SFTC to suggest that there is any governmental involvement in decisions regarding disposition of profits or financing of losses.
Therefore, the evidence on the record supports a preliminary finding of the absence of
The evidence placed on the record of this review by Rongxin, CFP/Three Star and SFTC demonstrates an absence of governmental control, both in law and in fact, with respect to their exports of the merchandise under review, in accordance with the criteria identified in
To determine whether the respondents' sales of subject merchandise were made at less than NV, we compared the export price (EP) to NV, as described in the “Export Price” and “Normal Value” sections of this notice, below.
In accordance with section 772(a) of the Act, the Department calculated EPs for sales by Rongxin, CFP/Three Star and SFTC to the United States because the subject merchandise was sold directly to unaffiliated customers in the United States (or to unaffiliated resellers outside the United States with knowledge that the merchandise was destined for the United States) prior to importation and CEP methodology was not otherwise indicated. We made deductions from the net sales price for foreign inland freight and foreign brokerage and handling. Each of these services was provided by a NME vendor, and thus, as explained in the “Normal Value” section below, we based the deductions for these movement charges on values from a surrogate country.
For the reasons stated in the “Normal Value” section below, we selected India as the surrogate country. We valued foreign brokerage and handling using Indian values that were reported in the public version of the questionnaire response placed on the record in
For exports from NME countries, section 773(c)(1) of the Act provides that the Department shall determine NV
In accordance with section 773(c)(3) of the Act, the FOPs utilized in producing pencils include, but are not limited to: (1) Hours of labor required; (2) quantities of raw materials employed; (3) amounts of energy and other utilities consumed; and (4) representative capital costs, including depreciation. In accordance with section 773(c)(4) of the Act, the Department valued the FOPs, to the extent possible, using the costs of the FOP in one or more market economy countries that are (1) at a level of economic development comparable to that of the PRC, and (2) significant producers of comparable merchandise. We determined that India is comparable to the PRC in terms of per capita gross national product and the national distribution of labor. Furthermore, India is a significant producer of comparable merchandise. In instances where Indian surrogate value information was not available, we relied on Indonesian, Philippine, and U.S. values as noted below. Indonesia and the Philippines are also comparable to the PRC in terms of per capita gross national product and the national distribution of labor, and are significant producers of comparable merchandise.
In accordance with section 773(c)(1) of the Act, for purposes of calculating NV, we attempted to value the FOPs using surrogate values that were in effect during the POR. However, if we were unable to obtain surrogate values that were in effect during the POR, we adjusted the values, as appropriate, to account for inflation or deflation between the effective period and the POR. We calculated the inflation or deflation adjustments for all factor values, as applicable, except labor, using the WPI for the appropriate surrogate country as published in
For further discussion of the surrogate values used in this review, see the
Section 776(a)(1) of the Act provides for the use of facts available if information needed by the Department to make a determination is not on the record. In this review, CFP/Three Star failed to report certain sales of subject merchandise. (
Pursuant to section 776(b) of the Act, when the Department uses facts available in reaching its determination, it may apply adverse inferences, if an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information. We have preliminarily determined that the record in this review does not indicate that CFP/Three Star failed to act to the best of its ability to comply with a request for information. While preparing reconciliation documentation requested by the Department at verification, company officials discovered that they failed to report a limited number of U.S. sales. Company officials explained that the omission occurred because the sales in question were made and invoiced shortly before the end of the POR but were posted in the company's accounting records for the period after the end of the POR. Given the limited number of transactions at issue and the level of cooperation received from company officials, we preliminarily determine that the use of an adverse inference in selecting from among the facts otherwise available is not warranted. As partial facts available, we preliminarily assigned to the unreported sales the weighted-average dumping margin calculated for CFP/Three Star's reported sales.
Eight producers/exporters named in the notice of initiation of this review did not respond to the Department's antidumping duty questionnaire. Because these entities failed to demonstrate that they are entitled to a separate rate, we are treating them as part of a single PRC-wide entity. Given that the eight producers/exporters, which are part of the PRC-wide entity, did not respond to the Department's antidumping duty questionnaire, we have preliminarily determined that these entities did not act to the best of their abilities to comply with our request for information. Therefore, pursuant to section 776(a)and (b) of the Act, we are relying on adverse facts available to determine the dumping margin for the PRC-wide entity. Specifically, as adverse facts available, we have assigned to the PRC-wide entity, the highest dumping margin from any prior segment of this proceeding, 114.90 percent, which is the current PRC-wide rate.
Section 776(c) of the Act provides that when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as “[i]nformation derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
In this review, we are using, as facts available, the weighted-average dumping margin calculated for CFP/Three Star's reported sales and the highest dumping margin from this or any prior segment of the proceeding. The weighted-average dumping margin calculated for CFP/Three Star's reported sales is not considered secondary information because it is based on information obtained during the course of this review. Therefore, the Department is not required to corroborate this margin. The highest dumping margin from this or any prior segment of the proceeding is the current PRC-wide rate of 114.90 percent. This rate was calculated in the 1999 - 2000 administrative review of the order on certain cased pencils from the PRC.
As a result of our review, we preliminarily determine that the following margins exist for the period December 1, 2001 through November 30, 2002:
The Department will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within ten days of the date of announcement of the preliminary results. An interested party may request a hearing within 30 days of publication of the preliminary results.
Upon completion of this administrative review, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. We have calculated exporter-specific antidumping duty assessment rates for subject merchandise based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total quantity of sales examined. We calculated exporter-specific assessment rates because there is no information on the record which identifies the importers of record. The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of the final results of review. If these preliminary results are adopted in the final results of review, we will direct CBP to assess the resulting assessment rates, calculated as described above, on each of the importer's entries during the review period.
The following deposit requirements will apply to all shipments of pencils from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(1) of the Act: (1) The cash deposit rates for the reviewed companies named above will be the rates for those firms established in the final results of this administrative review; (2) for any previously reviewed or investigated PRC or non-PRC exporter, not covered in this review, with a separate rate, the cash deposit rate will be the company-specific rate established in the most recent segment of this proceeding; (3) for all other PRC exporters, the cash deposit rate will be the PRC-wide rate established in the final results of this review; and (4) the cash deposit rate for any non-PRC exporter of subject merchandise from the PRC will be the rate applicable to the PRC exporter that supplied that exporter. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
This notice serves as a preliminary reminder to importers of their responsibility under 19 C.F.R. §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 double antidumping duties.
We are issuing and publishing this determination in accordance with sections section 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Final Results of Antidumping Duty Administrative Review.
On November 6, 2003, the Department of Commerce published the preliminary results of the 2002/2003 administrative review of the antidumping duty order on creatine monohydrate from the People's Republic of China. We gave interested parties an opportunity to comment on the preliminary results but received no comments. The final results do not differ from the preliminary results of review, in which we found that the respondent did not make sales in the United States at prices below normal value.
January 13, 2004.
Blanche Ziv, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th and Constitution Avenue, N.W., Washington, D.C. 20230; telephone (202) 482-4207.
On November 6, 2003, the Department of Commerce (“the Department”) published in the
The product covered by this order is creatine monohydrate, which is commonly referred to as “creatine.” The chemical name for creatine monohydrate is N (aminoiminomethyl) - N - methylglycine monohydrate. The Chemical Abstracts Service (“CAS”) registry number for this product is 6020-87-7. Creatine monohydrate in its pure form is a white, tasteless, odorless powder, that is a naturally occurring metabolite found in muscle tissue. Creatine monohydrate is provided for in subheading 2925.20.90 of the
The period of review (“POR”) is February 1, 2002, through January 31, 2003.
We received no comments from interested parties on our preliminary results. In addition, we have determined that no changes to our analysis are warranted for purposes of these final results. The weighted-average dumping margin for Suzhou Sanjian Nutrient & Health products Co., Ltd. (“Sanjian”) for the period February 1, 2002, through January 31, 2003, is zero percent.
We will instruct U.S. Customs and Border Protection (“CBP”) to liquidate entries of the subject merchandise from Sanjian during the period February 1, 2002, through January 31, 2003 without regard to antidumping duties. All other entries of the subject merchandise during the POR will be liquidated at the antidumping rate in place at the time of entry.
The Department will issue appropriate assessment instructions directly to the CBP within 15 days of publication of these final results of review.
The following deposit rates will be effective upon publication of these final results for all shipments of creatine monohydrate from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(1) of the Act:(1) for Sanjian, which has a separate rate, no antidumping duty deposit will be required; (2) for a company previously found to be entitled to a separate rate and for which no review was requested, the cash deposit rate will be the rate established in the most recent review of that company; (3) for all other PRC exporters the cash deposit rate will be 153.70 percent, the PRC-wide rate established in the less than fair value (“LTFV”) investigation; and (4) for non-PRC exporters of subject merchandise from the PRC, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that exporter. These deposit rates 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 order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), 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 the terms of an APO is a sanctionable violation.
We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Extension of Time Limit.
The Department of Commerce is extending the time limit for the preliminary results of the current review of the antidumping duty order on certain polyester staple fiber from Korea. The period of review is May 1, 2002 through April 30, 2003. This extension is made pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act.
January 13, 2004.
Julie Santoboni or Andrew McAllister, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-4194 or (202) 482-1174, respectively.
Section 751(a)(3)(A) of the Act requires the Department to issue the preliminary results of an administrative review within 245 days after the last day of the anniversary month of an order for which a review is requested and a final determination within 120 days after the date on which the preliminary results are published. If it is not practicable to complete the review within the time period, section 751(a)(3)(A) of the Act allows the Department to extend these deadlines to a maximum of 365 days and 180 days, respectively.
On July 1, 2003, the Department published a notice of initiation of administrative review of the antidumping duty order on certain polyester staple fiber (“PSF”) from Korea, covering the period May 1, 2002, through April 30, 2003 (68 FR 39055). The preliminary results for the antidumping duty administrative review of certain PSF from Korea are currently due no later than January 31, 2004.
The respondents in this proceeding have outstanding original and supplemental questionnaire responses. Because the Department requires time to review and analyze these responses once they are received, it is not practicable to complete this review within the originally anticipated time limit (
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Final Results of Countervailing Duty Administrative Review.
On September 8, 2003, the Department of Commerce (the Department) published in the Federal Register its preliminary results of administrative review of the countervailing duty order on certain cut-to-length carbon steel plate (CTL Plate) from Mexico for the period January 1, 2001, through December 31, 2001. We are now issuing the final results.
Based on our analysis of the comments received, we have made no changes to the net subsidy rate. Therefore, the final results do not differ from the preliminary results. The final net subsidy rate for the reviewed company is listed below in the section entitled “Final Results of Review.”
January 13, 2004.
Eric B. Greynolds at (202) 482-6071 or Lyman Armstrong at (202) 482-3601, Office of AD/CVD Enforcement VI, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, Room 4012, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
On September 8, 2003, the Department published the preliminary results of the administrative review of the countervailing duty order on certain cut-to-length carbon steel plate from Mexico.
The products covered by this administrative review are certain cut-to-length carbon steel plates. These products include hot-rolled carbon steel universal mill plates (
All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the “Issues and Decision Memorandum” (Decision Memorandum) dated January 6, 2004, which is hereby adopted by this notice. A list of issues which parties have raised and to which we have responded, all of which are in the Decision Memorandum, is attached to this notice as Appendix I. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum which is on file in room B-099 of the Main Commerce Building. In addition, a complete version of the Decision Memorandum can be accessed directly on the World Wide Web at
Based on our analysis of the comments received, we have made no changes to the net subsidy rate.
In accordance with 19 CFR 351.221(b)(4)(I), we calculated an individual subsidy rate for the producer/exporter subject to this review. We will instruct the U.S. Customs and Border Protection (CBP) to assess countervailing duties as indicated below on all appropriate entries. For the period January 1, 2001, through December 31, 2001, we determine the net subsidy rate for the reviewed company to be as follows:
The Department will also instruct CBP to collect cash deposits of estimated countervailing duties in the percentage detailed above of the f.o.b. invoice price on all shipments of the subject merchandise from the reviewed company, entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review.
Because the Uruguay Round Agreements Act (URAA) replaced the general rule in favor of a country-wide rate with a general rule in favor of individual rates for investigated and reviewed companies, the procedures for establishing countervailing duty rates, including those for non-reviewed companies, are now essentially the same as those in antidumping cases, except as provided for in section 777A(e)(2)(B) of the Tariff Act of 1930, as amended (the Act). The requested review will normally cover only those companies specifically named.
We will instruct CBP to continue to collect cash deposits for non-reviewed companies at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to non-reviewed companies covered by this order will be the rate for each such company established in the most recently completed administrative review segment conducted under the Act. If such a review has not been conducted, the rate established in the most recently completed administrative proceeding pursuant to the statutory provisions that were in effect prior to the URAA amendments is applicable.
This notice serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This administrative review and notice are in accordance with section 751(a)(1) of the Act (19 USC 1675(a)(1)).
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of public meeting.
The U.S. Department of Commerce's National Telecommunications and Information Administration (NTIA) will host a two-day public safety spectrum management
The forum will be held from 7 a.m. to 5 p.m. on Tuesday and Wednesday, February 10-11, 2004.
The Public Safety Spectrum Management Forum will be held at the Omni Shoreham Hotel, 2500 Calvert Street, NW., Washington, DC 20008; telephone: (202) 234-0700. All events are open to the public. Parking is available on site for a fee. The hotel is located one-half block from the Woodley Park Metrorail stop on the Red line.
Rich Orsulak, NTIA Public Safety Division, at (202) 482-9139, or electronic mail:
This forum is one in a series of public meetings to support the President Bush's Spectrum Policy Initiative, which will result in recommendations to the Administration for improving spectrum management policies and procedures. On May 29, 2003, the President signed a Presidential Memorandum outlining the Administration's initiative for spectrum management reform. The President established the “Spectrum Policy Initiative” to promote the development and implementation of a U.S. spectrum policy for the 21st century. He directed the Secretary of Commerce to chair the initiative, which includes two courses of spectrum-related activity, one based on an interagency task force and the other on a series of public meetings. The Department of Commerce will develop recommendations for revising policies and procedures to promote more efficient and beneficial use of spectrum. NTIA will provide additional information about the forum in the near future on its home page at
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 February 12, 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: 2,313.
Burden Hours: 579.
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 Shelia Carey at her e-mail address
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 February 12, 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: 279.
Burden Hours: 4,464.
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 Shelia Carey at her e-mail address
Office of Elementary and Secondary Education, Department of Education.
The Secretary proposes to add a competitive preference priority to the Improving Literacy Through School Libraries Program to reflect the importance of mastering reading skills in grades K-3. In this regard, the Secretary also proposes to clarify the allowable local professional development activities under this program, so that school library media specialists can address not only the reading needs of preschool children but also those of children in grades K-3. The Secretary may use this proposed priority and clarification of professional development activities for competitions in FY 2004 and in later years.
We must receive your comments on or before February 12, 2004.
Address all comments about this notice to Margaret McNeely, U.S. Department of Education, 400 Maryland Avenue, SW., room 5C130, Washington, DC 20202-6200, Fax (202) 260-8969. If you prefer to send your comments through the Internet, use the following address:
You must include the term COMMENTS in the subject line of your electronic message.
Margaret McNeely. Telephone: (202) 260-1335 or via the Internet at
If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
We invite you to submit written comments regarding this proposed priority and clarification of eligible activities.
We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from this proposed priority and clarification of eligible activities. Please let us know
During and after the public comment period, you may inspect all public comments about these proposed actions in Room 5C130, 400 Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays.
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this proposed priority and expansion of eligible activities. If you want to schedule an appointment for this type of aid, please contact the person listed under
The Improving Literacy Through School Libraries Program (LSL), authorized by Title I, Part B, Subpart 4, section 1251 of the Elementary and Secondary Education Act of 1965, (ESEA), as amended by the No Child Left Behind Act of 2001, is a discretionary grant program. Through LSL, the Department provides grants to eligible local educational agencies to improve student literacy skills and academic achievement by providing students with increased access to up-to-date school library materials; a well-equipped, technologically advanced school library media center; and well-trained, professionally certified school library media specialists.
This proposed competitive preference priority would support projects that propose primarily to serve grades K-3. The Department would add five points to an applicant's score if its application meets the priority. This proposed priority is based on the design of a proposed project rather than the enrollment of the school(s) to be served. Therefore, applicants with either K-6, K-8, or K-12 enrollments would be eligible to receive the competitive preference priority if their proposed project primarily serves grades K-3. For purposes of this priority, the term “primarily” means that more than 50 percent of the applicant's proposed budget will be used for grades K-3. The Secretary believes that targeting students in grades K-3 will maximize the impact of LSL on improving student reading achievement.
The Secretary proposes to allow grantees to conduct professional development activities for school library media specialists that further the purposes of the program, not only as related to preschool education, but also related to education benefiting children in grades K-3. This is consistent with our interpretation of the statute and legislative history. The Secretary believes that allowing professional development for school library media specialists benefiting children from preschool through grade 3 can help link projects under this program with efforts such as those funded under the Early Reading First program authorized by section 1221
We will announce the final priority and clarification of eligible local activities in the
This notice does
This notice of proposed priority and clarification of eligible local activities for professional development has been reviewed in accordance with Executive Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the notice of proposed priority and the clarification of eligible local activities are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this notice of proposed priority and clarification of eligible local activities, we have determined that the benefits of the proposed priority and clarification of eligible local activities justify the costs.
This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for this program.
You may view this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
You may also view this document in text at the Applicant Information link of the following site:
The official version of this document is the document published in the
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before March 15, 2004.
Submit your comments, referencing Docket ID No. RCRA-2003-0066, to EPA online using EDOCKET (our preferred method), by e-mail to
Charles Heizenroth, Office of Solid Waste, 5306W, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308-0154; fax number: (703) 308-8686; e-mail address:
EPA has established a public docket for this ICR under Docket ID No. RCRA-2003-0066. The official public docket is the collection of materials that is available for public viewing at the OSWER Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the OSWER Docket is (202) 566-0270.
You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI, and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. 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 above.
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 EDOCKET as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose public 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 EDOCKET. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed on EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Any comments related to this ICR should be submitted to EPA within 60 days of this notice. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments in formulating a final decision.
1.
Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at
Comments may be sent by electronic mail (e-mail) to
You may submit comments on a disk or CD ROM that you mail to the mailing address identified in the
2.
3.
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
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
1. Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility.
2. Evaluate the accuracy of the Agency's estimates of the burdens of the proposed collections of information.
3. Enhance the quality, utility, and clarity of the information to be collected.
4. Minimize the burden of the collections of information on those who are to respond, including through the use of appropriate automated or electronic collection technologies or other forms of information technology,
The Partner Registration Form identifies an organization and its facilities registering to participate in WasteWise, and requires the signature of a senior official that can commit the organization to the program. (This form can be submitted either electronically or in hard copy.) Within six months of registering, each partner is asked to conduct a waste assessment and submit baseline data and waste reduction goals to EPA via the Annual Assessment Form. (This form can also be submitted either electronically or in hard copy.) On an annual basis partners are asked to report, via the Annual Assessment Form, on their progress toward achieving their waste reduction goals by estimating amounts of waste prevented and recyclables collected, and describing buying or manufacturing recycled-content products. They can also provide WasteWise with information on total waste prevention revenue, total recycling revenue, total avoided purchasing costs due to waste prevention, and total avoided disposal costs due to recycling and waste prevention. Additionally, they are asked to submit new waste reduction goals.
Endorsers, which are typically trade associations or state/local governments, submit the Endorser Registration Form once during their endorser relationship with WasteWise. (This form can be submitted either electronically or in hard copy.) The Endorser Registration Form identifies the organization, the principal contact, and the activities to which the Endorser commits.
EPA's WasteWise program uses the submitted information to (1) identify and recognize outstanding waste reduction achievements by individual organizations, (2) compile aggregate results that indicate overall accomplishments of WasteWise partners, (3) identify cost-effective waste reduction strategies to share with other organizations, and (4) identify topics on which to develop assistance and information efforts.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR Part 9.
The estimated number of respondents is 1,325 in Year 1; 1,425 in Year 2; and 1,525 in Year 3. Estimated total annual burden on all respondents is 52,350 hours in Year 1; 56,350 hours in Year 2; and 60,350 hours in Year 3.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with section 122(h)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 6922(h)(1), notice is hereby given of a proposed administrative settlement concerning the Service Waste Inc. Superfund removal site, located two miles outside the city of Mansfield, Johnson County, Texas, with the parties referenced in the
The settlement requires the settling parties to pay a total of $181,926.84 for reimbursement of past response costs, plus interest, to the EPA Hazardous Substance Superfund. Within 30 days of the effective date of this agreement, the settling parties shall pay an initial payment of $11,926.84, the settling parties shall pay three yearly installments plus interest on the unpaid balance. The first installment of $50,000 plus interest will be due on or before November 30, 2004. The second installment of $60,000.00 plus interest will be due on or before November 30, 2005. The third and final installment of $60,000.00 plus interest will be due on or before November 30, 2006. EPA will bill the installments annually and payment is due within 30 days of the bill. The initial payment, installments, and any interest shall be deposited in the EPA Hazardous Substance Superfund. The settlement includes a covenant not to sue pursuant to sections 106(b)(2), 107, 111, 112, and 113 of CERCLA, 42 U.S.C. 9606(b)(2), 9607, 9611, 9612, or 9613, any claims arising out of the response actions at the Site for which the past response costs were incurred; and pursuant to sections 107 and 113 of CERCLA, 42 U.S.C. 9607 and 9613, relating to past response costs.
For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at 1445 Ross Avenue, Dallas, Texas 75202-2733.
Comments must be submitted on or before February 12, 2004.
The proposed settlement and additional background information relating to the settlement are available for public inspection at 1445 Ross Avenue, Dallas, Texas 75202-2733. A copy of the proposed settlement may be obtained from Janice Bivens, 1445 Ross Avenue, Dallas, Texas 75202-2733 at (214) 665-6717. Comments should reference Service Waste Inc. Superfund Site, Mansfield, Texas, EPA Docket Number 06-02-04 and should be addressed to Janice Bivens at the address listed above.
Barbara Nann, 1445 Ross Avenue, Dallas, Texas 75202-2733 at (214) 665-2157.
1. Service Waste Inc.
2. Pan American Wire, Inc.
3. Southwest Paperstock, Inc.
4. Robert F. Dunlap, Sr.
Equal Employment Opportunity Commission.
Notice of OMB Approval; ADEA waivers.
The Equal Employment Opportunity Commission (Commission or EEOC) announces that a collection of information entitled Waivers of Rights and Claims Under the ADEA; Informational Requirements, has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Carol R. Miaskoff, Assistant Legal Counsel, Office of Legal Counsel, at (202) 663-4689 or TTY (202) 663-7026. This notice is also available in the following formats: large print, braille, audio tape and electronic file on computer disk. Requests for this notice in an alternative format should be made to the Publications Center at 1-800-669-3362.
In the
For the Commission.
The Federal Communications Commission (FCC) has received Office of Management and Budget (OMB) approval for the following public information collections pursuant to the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid control number.
Paul J. Laurenzano, Federal Communications Commission, 445 12th Street, SW., Washington, DC, 20554, (202) 418-1359 or via the Internet at
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, Pub. L. 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's 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.
Written Paperwork Reduction (PRA) comments should be submitted on or before March 15, 2004. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all Paperwork Reduction Act (PRA) comments to Les Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to
For additional information or copies of the information collection(s), contact Les Smith at 202-418-0217 or via the Internet at
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, Pub. L. 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with
Written Paperwork Reduction Act (PRA) comments should be submitted on or before March 15, 2004. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all Paperwork Reduction Act (PRA) comments to Les Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to
For additional information or copies of the information collection(s), contact Les Smith at (202) 418-0217 or via the Internet at
OMB
Title: Application for Construction Permit for Reserved Channel Noncommercial Educational Broadcast Station.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, Pub. L. No. 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's 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.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before February 12, 2004. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all comments regarding this Paperwork Reduction Act submission to Judith B. Herman, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., DC 20554 or via the Internet to
For additional information or copies of the information collection(s), contact Judith
Respondents: Business or other for-profit, not-for-profit institutions, and state, local or tribal government.
Frequency of Response: On occasion reporting requirement, recordkeeping requirement, and third party disclosure requirement.
Federal Communications Commission.
Notice of comment dates.
This document requests comment on Level 3's petition for forbearance from assessment of access charges on voice-embedded IP communications. To assist the agency in determining whether to grant or deny Level 3's petition, comments from interested parties are being sought. This document provides the dates by which interested parties may file comments and reply comments.
The agency must receive comments on or before March 1, 2004, and reply comments on or before March 31, 2004.
Federal Communications Commission, 445 12th Street, SW., Washington, DC, 20554.
Jennifer McKee, Wireline Competition Bureau, Pricing Policy Division, (202) 418-1530.
This is a summary of the Commission's Public Notice, WC Docket No. 03-266, released January 2, 2004. On December 23, 2003, Level 3 Communications LLC (Level 3) filed a petition for forbearance pursuant to section 10 of the Communications Act of 1934, as amended (the Act), requesting the Commission to forbear from application of section 251(g) of the Act, 47 U.S.C. 251(g), the exception clause of section 51.701(b)(1) of the Commission's rules, 47 CFR 51.701(b), and section 69.5(b) of the Commission's rules, 47 CFR 69.5(b), to the extent those provisions could be interpreted to permit local exchange carrier (LECs) to impose interstate or intrastate access charges on Internet protocol (IP) traffic that originates or terminates on the public switched telephone network (PSTN), or on PSTN-PSTN traffic that is incidental thereto. Level 3 excludes from its forbearance request geographic service areas of incumbent LECs that currently are exempt from section 251(c) pursuant to section 251(f)(1)'s rural exemption. 47 U.S.C. 251(c) and (f)(1). Level 3 argues that grant of this forbearance request while the Commission completes its reform of intercarrier compensation will allow IP communications that embed voice applications (voice-embedded IP) to develop with the cleanest regulatory slate possible, and will result in needed regulatory certainty, increased investment, product and technology innovation, and increased deployment of advanced services. Upon grant of its petition, Level 3 asserts that voice-embedded IP-PSTN traffic would be exchanged between a LEC and a telecommunications carrier serving a voice-embedded IP service provider pursuant to section 251(b)(5) of the Act and Subpart H of part 51 of the Commission's rules. 47 U.S.C. 251(b)(5); 47 CFR part 51 Subpart H.
Interested parties may file comments on or before March 1, 2004, and reply comments on or before March 31, 2004. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies.
Comments filed through the ECFS can be sent as an electronic file via the Internet to
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail).
The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
All filings must be addressed to the Commission's Secretary, Office of the
Parties are strongly encouraged to file comments electronically using the Commission's Electronic Comment Filing System (ECFS). Parties are also requested to send a courtesy copy of their comments via email to
Two (2) copies of the comments and reply comments should also be sent to Chief, Pricing Policy Division, Wireline Competition Bureau, Federal Communications Commission, 445 12th Street, SW., Room 5-A221, Washington, DC 20554. Parties shall also serve one copy with Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, (202) 863-2893, or via email to <
Documents in WC Docket No. 03-266, including the Level 3 Petition, are available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, 445 12th St. SW., Room CY-A257, Washington, DC 20554. The documents may also be purchased from Qualex International, telephone (202) 863-2893, facsimile (202) 863-2898.
This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Postmarket Surveillence of Medical Devices” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Robbins, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Procedures for the Safe and Sanitary Processing and Importing of Fish and Fishery Products” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Robbins, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Reporting and Recordkeeping Requirements and Availability of Sample Electronic Products for Manufacturers and Distributors of Electronic Products” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Robbins, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Infectious Disease Issues in Xenotransplantation” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
JonnaLynn P. Capezzuto, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by February 12, 2004.
The Office of Management and Budget (OMB) is still experiencing significant delays in the regular mail, including first class and express mail, and messenger deliveries are not being accepted. To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: Fumie Yokota, Desk Officer for FDA, FAX: 202-395-6974.
Peggy Robbins, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Statutory requirements for infant formula under the Federal Food, Drug, and Cosmetic Act (the act) are intended to protect the health of infants and include a number of reporting and recordkeeping requirements. Among other things, section 412 of the act (21 U.S.C. 350a) requires manufacturers of infant formula to establish and adhere to quality control procedures, notify FDA when a batch of infant formula that has left the manufacturers' control may be adulterated or misbranded, and keep records of distribution. FDA has issued regulations to implement the act's requirements for infant formula in 21
In the
FDA estimates the burden for this collection of information as follows:
In compiling these estimates, FDA consulted its records of the number of infant formula submissions received in the past. The figures for hours per response are based on estimates from experienced persons in the agency and in industry.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Food Labeling; Notification Procedures for Statements on Dietary Supplements” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Robbins, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “User Fee Cover Sheet; Form FDA 3397” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
JonnaLynn P. Capezzuto, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
In the
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Shirley Meeks, Conference Management Staff, at 301-594-1283, ext. 105, at least 7 days in advance of the meeting.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). At least one portion of the meeting will be closed to the public.
On February 6, 2004, the committee will discuss, make recommendations and vote on a PMA for a radiofrequency electrosurgical corneal shaping device for the temporary treatment of presbyopia. Background information for each day's topic, including the attendee list, agenda, and questions for the committee, will be available to the public 1 business day before the meeting, on the Internet at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact AnnMarie Williams, Conference Management Staff, at 301-594-1283, ext. 113, at least 7 days in advance of the meeting.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the draft guidance document entitled “Saline, Silicone Gel, and Alternative Breast Implants.” This version of the draft guidance document updates preclinical, clinical, and labeling recommendations described in “Guidance for Saline, Silicone Gel, and Alternative Breast Implants” dated February 11, 2003. The update is based on the latest scientific and medical information on breast implants, and clarifies the type and amount of scientific data that should be submitted to allow FDA to evaluate whether these devices are safe and effective. The draft guidance document contains new recommendations for manufacturers submitting applications for premarket approval of breast implants. Some of the recommendations apply to all premarket approval applications for breast implants, while others are specific to the type of implant. The draft guidance document is not final nor is it in effect at this time.
Submit written or electronic comments on this draft guidance by April 12, 2004.
Submit written requests for single copies on a 3.5” diskette of the guidance document entitled “Saline, Silicone Gel, and Alternative Breast Implants” to the Division of Small Manufacturers, International, and Consumer Assistance (HFZ-220), Center for Devices and Radiological Health (CDRH), Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850. Send one self-addressed adhesive label to assist that office in processing your request, or fax your request to 301-443-8818. See the
Submit written comments concerning this draft 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
Samie Allen, Center for Devices and Radiological Health (HFZ-410), Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 301-594-3090, ext. 139.
FDA is revising the guidance document entitled “Saline, Silicone Gel, and Alternative Breast Implants” to clarify the type and amount of scientific data that should be submitted to allow FDA to evaluate whether these devices are safe and effective. The draft guidance document provides updated information based on the latest scientific and medical information on breast implants. The draft guidance document contains new recommendations for manufacturers submitting applications for premarket approval of breast implants. Some of the recommendations apply to all premarket approval applications for these devices, while others are specific to silicone gel-filled, saline-filled, or alternative implants. The proposed changes are primarily to the mechanical data, clinical data, and labeling sections of the draft guidance document. In addition, a new section entitled “Modes and Causes of Rupture” has been added
This draft guidance is being issued consistent with FDA's good guidance practices (GGPs) regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the agency's current thinking on “Saline, Silicone Gel, and Alternative Breast Implants.” It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
To receive “Saline, Silicone Gel, and Alternative Breast Implants,” you may either send a fax request to 301-443-8818 to receive a paper copy of the document, or send an e-mail request to
Persons interested in obtaining a copy of the draft guidance may also do so by using the Internet. CDRH maintains an entry on the Internet for easy access to information including text, graphics, and files that may be downloaded to a personal computer with Internet access. Updated on a regular basis, the CDRH home page includes device safety alerts,
This guidance contains information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 USC 3501-3520) (the PRA). The collections of information addressed in Sections 3 through 10 of the guidance document have been approved by OMB in accordance with the PRA under the regulations governing premarket approval applications (21 CFR part 814, OMB No. 0910-0231). The labeling provisions addressed in Section 11 of the guidance document have been approved under OMB No. 0910-0485.
Interested persons may submit to the Division of Dockets Management (see
60-Day Notice of Information Collection Under Review; National Interest Waivers; Supplemental Evidence to I-140 and I-485.
The Department of Homeland Security, Bureau of Citizenship and Immigrations Services (CIS) has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty day until March 15, 2004.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques of other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or a additional information, please contact Richard A. Sloan (202) 514-3291, Director, Regulations and Forms Services Division, Department of Homeland Security, 425 I Street, NW., Room 4304, Washington, DC 20536. Additionally, comments and/or
If additional information is required contact: Mr. Steve Cooper, PRA Clearance Officer, Department of Homeland Security, Office of the Chief Information Officer, Regional Office Building 3, 7th and D Streets, SW., Suite 4636-26, Washington, DC 20202.
60-Day Notice of Information Collection Under Review; Application for Issuance or Replacement of Northern Mariana Card; Form I-777.
The Department of Homeland Security (DHS) and the Bureau of Citizenship and Immigration Services (CIS), has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until March 15, 2004.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please contact Richard A. Sloan (202) 514-3291, Director, Regulations and Forms Services Division, Department of Homeland Security, Room 4034, 425 I Street, NW., Washington, DC 20536. Additionally, comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time may also be directed to Mr. Richard A. Sloan.
If additional information is required contact: Mr. Steve Cooper, PRA Clearance Officer, Department of Homeland Security, Office of the Chief Information Officer, Regional Office Building 3, 7th and D Streets, SW., Suite 4636-26, Washington, DC 20202.
60-Day Notice of Information Collection Under Review; Generic Clearance of Customer Service Surveys.
The Department of Homeland Security, Bureau of Citizenship and Immigration Services (CIS), has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until March 15, 2004.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please contact Richard A. Sloan (202) 514-3291, Director, Regulations and Forms Services Division, Department of Homeland Security, Room 4304, 425 I Street, NW., Washington, DC 20536. Additionally, comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time may also be directed to Mr. Richard A. Sloan.
If additional information is required contact: Mr. Steve Cooper, PRA Clearance Officer, Department of Homeland Security, Office of the Chief Information Officer, Regional Office Building 3, 7th and D Streets, SW., Suite 4636-26, Washington, DC 20202.
60-Day Notice of Information Collection Under Review; Application for Travel Document, Form I-131.
The Department of Homeland Security, Bureau of Citizenship and Immigration Services (CIS), has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until March 15, 2004.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Mr. Steve Cooper, PRA Clearance Officer, Department of Homeland Security, Office of the Chief Information Officer, Regional Office Building 3, 7th and D Streets, SW., Suite 4636-26, Washington, DC 20202.
60-Day Notice of Information Collection Under Review; Application for Action on an Approved Application or Petition; Form I-824.
The Department of Homeland Security, Bureau of Citizenship and Immigration Services (CIS) has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until March 15, 2004.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please contact Richard A. Sloan (202) 514-3291, Director, Regulations and Forms Services Division, Department of Homeland Security, 425 I Street, NW., Room 4304, Washington, DC 20536. Additionally, comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time may also be directed to Mr. Richard A. Sloan.
If additional information is required contact: Mr. Steve Cooper, PRA Clearance Officer, Department of Homeland Security, Office of the Chief Information Officer, Regional Office Building 3, 7th and D Streets, SW., Suite 4636-26, Washington, DC 20202.
60-Day Notice of Information Collection Under Review; Application for Temporary Protected Status; Forms I-821 and I-821A.
The Department of Homeland Security (DHS) and the Bureau of Citizenship and Immigration Services (CIS) has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until March 15, 2004.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please contact Richard A. Sloan (202) 514-3291, Director, Regulations and Forms Services Division, Department of Homeland Security, 425 I Street, NW., Room 4304, Washington, DC 20536. Additionally, comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time may also be directed to Mr. Richard A. Sloan.
If additional information is required contact: Mr. Steve Cooper, PRA Clearance Officer, Department of Homeland Security, Office of the Chief Information Officer, Regional Office Building, 37th and D Street, SW., Suite 4636-26, Washington, DC 20202.
Coast Guard, DHS.
Request for applications.
The U.S. Coast Guard is seeking applications for appointment to membership on the Houston/Galveston Navigation Safety Advisory Committee (HOGANSAC). HOGANSAC provides
Applications must be completed and postmarked no later than April 30, 2004.
You may request an application form by writing to Commanding Officer, USCG VTS Houston/Galveston, 9640 Clinton Drive, Houston, TX 77029; by calling Lieutenant (LT) Sean Komatinsky at (713-671-5103); by submitting a faxed request to 713-671-5159; or by visiting HOGANSAC's Web site at
Commander (CDR) Thomas Marian, Executive Secretary of HOGANSAC at (713-671-5160) or LT Sean Komatinsky, Assistant to the Executive Secretary of HOGANSAC at (713-671-5103).
HOGANSAC is a Federal advisory committee subject to the provisions of 5 U.S.C. App. 2. This committee provides local expertise to the Secretary of Homeland Security and the Coast Guard on such matters as communications, surveillance, traffic control, anchorages, aids to navigation, and other related topics dealing with navigation safety in the Houston/Galveston area. The committee normally meets at least three times a year at various locations in the Houston/Galveston area. Members serve voluntarily, without compensation from the Federal Government for salary, travel, or per diem. Term of membership is for two years. Individuals appointed by the Secretary based on applications submitted in response to this solicitation will serve from November 21, 2004 until November 21, 2006.
By law, the Committee consists of eighteen members who have particular expertise, knowledge, and experience regarding the transportation, equipment, and techniques that are used to ship cargo and to navigate vessels in the inshore and the offshore waters of the Gulf of Mexico. Committee members represent a wide range of constituencies. There are eleven membership categories: (1) Two members who are employed by the Port of Houston Authority or have been selected by that entity to represent them; (2) two members who are employed by the Port of Galveston or the Texas City Port Complex or have been selected by those entities to represent them; (3) two members from organizations that represent shipowners, stevedores, shipyards, or shipping organizations domiciled in the State of Texas; (4) two members representing organizations that operate tugs or barges that utilize the port facilities at Galveston, Houston, and Texas City; (5) two members representing shipping companies that transport cargo from the ports of Galveston and Houston on liners, break bulk, or tramp steamer vessels; (6) two members representing those who pilot or command vessels that utilize the ports of Galveston, Houston and Texas City; (7) two at-large members who may represent a particular interest group but who use the port facilities at Galveston, Houston or Texas City; (8) one member representing labor organizations involved in the loading and unloading of cargo at the ports of Galveston or Houston; (9) one member representing licensed merchant mariners other than pilots, who perform shipboard duties on vessels which utilize the port facilities of Galveston, Houston or Texas City; (10) one member representing environmental interests; and (11) one member representing the general public. In support of the policy of the Department of Homeland Security on gender and ethnic diversity, the Coast Guard encourages applications from qualified women and members of minority groups. Individuals nominated to represent the general public will be required to complete a Confidential Financial Disclosure Report (OGE Form 450). Neither the report nor the information it contains may be released to the public, except under an order issued by a Federal court or as otherwise provided under the Privacy Act (5 U.S.C. 552a).
Coast Guard, DHS.
Request for applications.
The Coast Guard seeks applications for membership on the Towing Safety Advisory Committee (TSAC). TSAC advises the Coast Guard on matters relating to shallow-draft inland and coastal waterway navigation and towing safety.
Application forms should reach us on or before March 15, 2004.
You may request an application form by writing to Commandant (G-MSO-1), U.S. Coast Guard, 2100 Second Street SW., Washington, DC 20593-0001; by calling 202-267-0214; or by faxing 202-267-4570. Send your original completed and signed application in written form to the above street address. This notice is available on the Internet at
Mr. Gerald Miante; Assistant Executive Director of TSAC, telephone 202-267-0214, fax 202-267-4570, or e-mail
The Towing Safety Advisory Committee (TSAC) is a Federal advisory committee mandated by Congress and operates under 5 U.S.C. App. 2, (Pub. L. 92-463, 86 Stat. 770, as amended). It advises the Secretary of Homeland Security on matters relating to shallow-draft inland and coastal waterway navigation and towing safety. This advice also assists the Coast Guard in formulating the position of the United States in advance of meetings of the International Maritime Organization.
TSAC meets at least once a year at Coast Guard Headquarters, Washington, DC, or another location selected by the Coast Guard. It may also meet for extraordinary purposes. Its working groups may meet to consider specific issues as required. The 16-person membership includes 7 representatives of the barge and towing industry (reflecting a regional geographical balance); 1 member from the offshore mineral and oil supply vessel industry; and 2 members from each of the following areas: Maritime labor; shippers (of whom at least one shall be engaged in the shipment of oil or hazardous materials by barge); port districts, authorities, or terminal operators; and the general public.
We are currently considering applications for three positions from the Barge and Towing Industry reflecting a geographical balance, one position from Port Districts, Authorities, or Terminal
In support of the policy of the Department of Homeland Security on gender and ethnic diversity, we encourage qualified women and members of minority groups to apply.
Coast Guard, DHS.
Notice.
The Coast Guard gives notice that Congressional authorization of the United States 1997 enforcement policy (enforcement policy) relating to the incidental discharge of dry cargo residue on the Great Lakes expires on September 30, 2004, and that the study of that policy mandated by Congress has been completed. If new regulations are not in place by September 30, 2004, the enforcement policy will expire, and the current statute, which prohibits such discharges, will become effective October 1, 2004, and will be enforced by the Coast Guard. Although the Coast Guard is initiating a rulemaking regarding the discharge of dry cargo residue on the Great Lakes, it is improbable that any such rulemaking would be completed before the expiration of the enforcement policy.
The interim enforcement policy discussed in this notice expires September 30, 2004. Enforcement in accordance with current statutes will begin October 1, 2004.
Any comments or material received from the public in regard to this notice, as well as documents mentioned in the notice as being available in the public docket, are part of docket USCG-2003-16814 and may be viewed online at
If you have questions relating to the substance of this notice call LCDR Mary Sohlberg, U.S. Coast Guard, telephone 202-267-0713. If you have questions on viewing the docket, call Andrea M. Jenkins, Program Manager, Docket Operations, Department of Transportation, telephone 202-366-0271.
The historical practice of bulk dry cargo vessels on the Great Lakes is to wash non-hazardous and non-toxic cargo residues (“dry cargo residue” or “cargo sweepings”) overboard. In 1987, Congress amended the Act to Prevent Pollution from Ships (APPS; see Pub. L. 100-220, sec. 2002; see also 33 U.S.C. 1901
To ease the difficult implementation issues that application of the MARPOL guidelines would create within the unique legal, environmental, and economic framework of the Great Lakes, the Ninth Coast Guard District implemented in 1993 an “enforcement policy” (CCGD9INST 16460.1) that has been revised over the years and reissued in 1995 and in 1997. The 1997 policy is the current practice in place in the Great Lakes. The Coast Guard was directed by Congress in the 1998 Coast Guard Authorization Bill to continue its current policy regarding dry cargo residues on the Great Lakes until 2002. This authorization was subsequently extended until September 30, 2004, in Public Law 106-554, sec. 1117, pending completion of a study and formulation of a specific regulatory solution to the issue. Unless new regulations adopt elements of the enforcement policy, the Coast Guard has concluded that we have no authority to extend the enforcement policy on our own, beyond the September 2004 deadline. The Coast Guard contracted the completion of the study and has received the study report on discharge of vessel dry cargo residues mandated by Congress in Public Law 106-554. The study is available at
Because of the effects on U.S. flag commercial shipping on the Great Lakes of a ban on dry cargo residues discharges, that study, among other things, recommended that the current practice of allowing vessels to discharge their incidental cargo residues into certain portions of the Great Lakes be continued, but, citing the lack of available data, also recommended that an Environmental Assessment be performed of the long term effects of continuing that practice. We intend to initiate a rulemaking and, as part of the rulemaking process, perform an Environmental Assessment in conjunction with other regulatory assessments. The analyses would assist in determining whether the regulations regarding the discharge of dry cargo residues in the Great Lakes should reflect past practice, prohibit discharges altogether, or allow for some other course of action, taking into account all the circumstances and stakeholder interests. If new regulations are not in effect by September 30, 2004, the Coast Guard will enforce the existing statutes commencing October 1, 2004.
Coast Guard, DHS.
Notice of open teleconference meetings.
This notice announces a teleconference of the Chemical Transportation Advisory Committee (CTAC) and a teleconference of the Towing Safety Advisory Committee (TSAC). The purpose of these teleconferences is for CTAC and TSAC to review the findings of the joint CTAC/TSAC Working Group on
The CTAC teleconference will take place on Wednesday, January 28, 2004, from 10 a.m. until 12 a.m. (noon), EST. The TSAC teleconference will take place on Wednesday, January 28, 2004, from 1 p.m. until 3 p.m., EST. These teleconferences may close early if all business is finished. Comments and related material must reach the Coast Guard before the public comment period at the teleconferences.
Members of the public may participate in these teleconferences by dialing 1-202-366-3920, pass code: 3199. Public participation is welcomed; however, the number of teleconference lines is limited and available on a first-come, first-served basis. Members of the public may also participate by coming to Room 1303, U.S. Coast Guard Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001. We request that members of the public who plan to attend this meeting notify LT Michael McKean at 202-267-0087 so that he may notify building security officials. Written comments should be sent to CDR Robert J. Hennessy, Executive Director, CTAC, or Mr. Gerald Miante, Assistant Executive Director, TSAC, Commandant (G-MSO), 2100 Second Street, SW., Washington DC 20593-0001 or Fax 202-267-4570. This notice is available on the Internet at
Executive Director of CTAC, at telephone 202-267-1217, fax 202-267-4570, Assistant Executive Director of TSAC, at telephone 202-267-0221, fax 202-267-4570, or LT Michael McKean at telephone 202-267-0087, fax 202-267-4570.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. 2, (Pub. L. 92-463, 86 Stat. 770, as amended).
(1) Introductions and opening remarks.
(2) Discussion of CTAC/TSAC working group findings regarding the potential addition of ammonium nitrate and ammonium nitrate fertilizers that are classified as oxidizers to the Coast Guard Certain Dangerous Cargo (CDC) definition.
(3) Review proposed final report.
(4) Public comment period.
(5) Vote.
(6) Closing remarks.
The Chairpersons of CTAC and TSAC shall conduct the teleconferences in a way that will, in their judgment, facilitate the orderly conduct of business. During the teleconferences, the committees welcome public comment. Members of the public will be heard during the public comment period. The committees will make every effort to hear the views of all interested parties. Please note that the teleconferences may close early if all business is finished. Written comments must be submitted before the public comment period at the teleconferences to the Executive Director of CTAC or the Assistant Executive Director of TSAC (see
The teleconferences will be recorded and a summary will be available for public review upon request approximately 30 days following the teleconference meetings.
Coast Guard, DHS.
Notice of meetings.
The Houston/Galveston Navigation Safety Advisory Committee (HOGANSAC) and its working groups will meet to discuss waterway improvements, aids to navigation, area projects impacting safety on the Houston Ship Channel, and various other navigation safety matters in the Galveston Bay area. All meetings will be open to the public.
The next meeting of HOGANSAC will be held on Thursday, February 5, 2004 at 9 a.m. An advance meeting of the Committee's working groups will be held on Thursday, January 22, 2004 at 9 a.m. The meetings may adjourn early if all business is finished. Members of the public may present written or oral statements at either meeting. Requests to make oral presentations or distribute written materials should reach the Coast Guard 5 working days before the meeting at which the presentation will be made. Requests to have written materials distributed to each member of the committee in advance of the meeting should reach the Coast Guard at least 10 working days before the meeting at which the presentation will be made.
The full Committee meeting will be held at the Houston Pilot Association Office, 8150 South Loop East, Houston, Texas (713-645-9620). The working groups meeting will be held at the Galveston-Texas City Pilots Association Office, 1301 Pelican Island #1, Galveston, Texas (409-740-3336). This notice is available on the Internet at
Captain (CAPT) Richard Kaser, Executive Director of HOGANSAC, telephone (713) 671-5199, Commander (CDR) Tom Marian, Executive Secretary of HOGANSAC, telephone (713) 671-5164, or Lieutenant (LT) Sean Komatinsky, assistant to the Executive Secretary of HOGANSAC, telephone (713) 671-5103, e-mail
Notice of this meeting is given pursuant to the Federal Advisory Committee Act, 5 U.S.C. App. 2.
(1) Opening remarks by the Committee Sponsor (RADM Robert Duncan) (or the Committee Sponsor's representative), Executive Director (CAPT Richard Kaser) and Chairman (Mr. Tim Leitzell).
(2) Approval of the October 9, 2003 minutes.
(3) Old Business:
(a) Dredging projects.
(b) AtoN Knockdown Working Group and pending AtoN projects.
(c) Mooring subcommittee report.
(d) Education and Outreach subcommittee report.
(e) Area Maritime Security Committee Liaison's report.
(f) Bridge Allision Prevention Working Group.
(g) Swimmers Near Lynchburg.
(h) Electronic Navigation.
(i) Safe Harbor Working Group
(j) Maritime Incident Review Working Group
(k) Deepdraft Entry Facilitation Working Group
(l) Galveston Causeway Construction Working Group
(4) New Business.
(1) Presentation by each working group of its accomplishments and plans for the future.
(2) Review and discuss the work completed by each working group.
Working groups have been formed to examine the following issues: dredging and related issues, electronic navigation systems, AtoN knockdowns, impact of passing vessels on moored ships, boater education issues, facilitating deep draft movements and mooring infrastructure. Not all working groups will provide a report at this session. Further, working group reports may not necessarily include discussions on all issues within the particular working group's area of responsibility. All meetings are open to the public. Please note that the meetings may adjourn early if all business is finished. Members of the public may make presentations, oral or written, at either meeting. Requests to make oral or written presentations should reach the Coast Guard 5 working days before the meeting at which the presentation will be made. If you would like to have written materials distributed to each member of the committee in advance of the meeting, you should send your request along with 15 copies of the materials to the Coast Guard at least 10 working days before the meeting at which the presentation will be made.
For information on facilities or services for the handicapped or to request special assistance at the meetings, contact the Executive Director, Executive Secretary, or assistant to the Executive Secretary as soon as possible.
Coast Guard, DHS.
Notice of availability.
As required by Executive Order 13186, the Coast Guard gives notice that it has entered into a Memorandum of Understanding (MOU) with the U.S. Fish and Wildlife Service to promote the conservation of migratory bird populations in the context of the Rescue 21 Program on May 22, 2003. The MOU obligates the Coast Guard to consider its actions that might have substantial adverse impact on migratory birds and it requires the Coast Guard to incorporate certain specific concerns for migratory birds into its day-to-day decision-making.
The memorandum of understanding was signed by the Coast Guard on May 22, 2003.
A copy of the Memorandum of Understanding and Executive Order 13186 are available in the docket for this notice, USCG-2003-16575, in the Docket Management Facility, U.S. Department of Transportation, Room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001, and online at
If you have questions on this notice, call LT Curtis Borland, Office of Environmental Law, Coast Guard, telephone (202) 267-6000. If you have questions about viewing material in the docket, call Andrea M. Jenkins, Program Manager, Docket Operations, telephone (202) 366-0271.
A copy of Executive Order 13186 of January 10, 2001, Responsibilities of Federal Agencies to Protect Migratory Birds, and the Memorandum of Understanding the Coast Guard has developed and implemented with the Fish and Wildlife Service of the Department of Interior in the context of the Rescue 21 Program in response to this Order are available in the docket where indicated under
Rescue 21 is the name of the Coast Guard program to modernize the current National Distress System (NDS) which includes installing state-of-the-art, dual mode VHF/UHF telecommunications technology and deploying it at either existing NDS antenna tower sites, leased space on existing commercial tower sites, or new antenna tower sites. The NDS is the nation's maritime search and rescue “911” system and forms the backbone of the Coast Guard's Short Range Communication System. The NDS incorporates the use of very high frequency-frequency modulation (VHF-FM) radios to provide two-way voice communications coverage for the majority of USCG missions in coastal areas and navigable waterways where commercial and recreational traffic exists. The current NDS system is outdated and suffers from technological obsolesce. The system was intended to provide coverage extending out approximately 20 nautical miles from the shore of the United States. Currently, there are more than 65 verified communications gaps and numerous localized coverage deficiencies.
Rescue 21 is an advanced search and rescue communications system that helps the Coast Guard to more effectively locate and assist boaters in distress. Rescue 21 will greatly improve the Coast Guard's ability to detect and locate the source of distress calls, eliminate known radio coverage gaps, and enhance Coast Guard command and control capabilities across all other missions, such as homeland security, environmental protection and law enforcement. Rescue 21 is designed to save lives in the 21st century.
Office of Policy Development and Research, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Comments Due Date: March 15, 2004.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and should be sent to: Reports Liaison Officer, Office of Policy Development and Research, Department of Housing and Urban Development, 451 7th Street, SW., Room 8226, Washington, DC 20410.
Paul Dornan at 202-708-0614 ext. 4486 for copies of the proposed data collection instruments and other available documents.
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
The Notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Mininize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This Notice also lists the following information:
The evaluation assesses impacts in five primary areas that may be affected by receiving a housing voucher:
• Housing assistance and services;
• Employment and earnings;
• Income, benefits, and food security;
• Housing mobility and neighborhood environment; and
• Household composition, family, and child well being.
It is important to distinguish between the analysis that will be conducted using administrative files and Census data and the analysis that requires follow-on survey data. Many of the outcomes of interest can be measured only through participant surveys. These survey-measured outcomes include important dimensions of adult and child well-being, such as receipt of education and training, family health, children's educational outcomes, household composition and family formation, and families' satisfaction with their neighborhoods. Participant surveys also allow researchers to investigate details about the employment experience not available from administrative records including job quality (hours worked per week, hourly wages, fringe benefits); job location; methods of job search; and barriers to employment.
The proposed survey data collection will offer powerful new evidence concerning the effects of tenant-based rental assistance on the self-sufficiency and well being of low-income families.
The experimental design used in the evaluation enables one to draw rigorous inferences about the effects of housing vouchers on family well-being, independent of all other factors affecting the lives of program participants. Random assignment serves to assure that the treatment and control groups are well matched on both observed and unobserved characteristics at the time of their entry into the study. It thus establishes the strongest possible foundation for understanding whether housing vouchers can assist welfare families in achieving greater financial independence or otherwise improving their lives.
This study and its survey component are especially timely in light of federal and state changes in welfare policies over the past decade, reducing the numbers of families eligible for public assistance and limiting the time period over which they can receive benefits. Housing vouchers may help low-income families become employed and may also help them meet financial needs as they transition from welfare.
The planned follow-on survey, in conjunction with an analysis of outcomes derived from Census data and administrative sources, will capture the experiences of treatment and control group members over a period of approximately four years. A follow-up interval of this length is important to measuring the impact of vouchers, as the typical length of stay in vouchers is three years, and the effects of a voucher on family well-being may take time to emerge.
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Fish and Wildlife Service, Interior.
Notice of issuance of permit for incidental take of threatened species.
On July 3, 2003, notice was published in the
Notice is hereby given that on December 12, 2003, as authorized by the provisions of the Act, the Service issued a permit (TE-073390-0) to the above named party subject to certain conditions set forth therein. The permit was granted only after the Service determined that it was applied for in good faith, that granting the permit will not be to the disadvantage of the threatened species, and that it will be consistent with the purposes and policy set forth in the Act.
Additional information on this permit action may be requested by contacting the Colorado Field Office, 755 Parfet Street, Suite 361, Lakewood, Colorado 80215, telephone (303) 275-2370, between the hours of 8 a.m. and 4:30 p.m. weekdays.
Fish and Wildlife Service, Interior.
Notice of availability and receipt of application.
This notice advises the public that the Livermore Area Landowners Group, The Nature Conservancy and the State of Colorado (Applicants) have 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 (Zapus hudsonius preblei) (Preble's), federally listed as threatened, through loss and modification of its habitat associated with development of new agricultural and residential structures and ongoing agricultural activities in the Livermore Area of northern Larimer County, Colorado. The duration of the permit would be 30 years from the date of issuance.
We announce the receipt of the Applicant's incidental take permit application, which includes an Environmental Assessment (EA) and the Livermore Area Habitat Conservation Plan (LAHCP) for the Preble's in the Livermore Area of Larimer County, Colorado. The proposed EA and LAHCP are available for public review and comment. They fully describe the proposed project and the measures the Applicants would undertake to minimize and mitigate project impacts to the Preble's.
The Service requests comments on the EA and LAHCP 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 National Environmental Policy Act regulations (40 CFR 1506.6).
Written comments on the permit application, EA and LAHCP should be received on or before March 15, 2004.
Comments regarding the permit application, EA, and LAHCP should be addressed to Mary Henry, Assistant Regional Director, Ecological Services, U.S. Fish and Wildlife Service, P.O. Box 25486, Denver Federal Center, Denver, Colorado 80225-0486. (Street location is 134 Union Boulevard, Lakewood, Colorado 80228-1807). Comments also may be submitted by facsimile to (303) 236-0027.
Bob McCue, Ecological Services Program Supervisor (South), telephone (303) 236-7400, extension 252.
Individuals wishing copies of the EA and LAHCP 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 Livermore Planning Area encompasses 114,634 hectares (283,266 acres) of land utilized primarily for agricultural purposes with a limited amount proposed for development. The applicants are making participation in the LAHCP available to all landowners within the Livermore Planning Area who voluntarily agree to participate. Within the planning area, the LAHCP proposes a 8,626.3-hectare (21,316-acre) conservation zone (CZ) consisting of corridors along 323.5 kilometers (201 miles) of streams.
The applicants have determined that the activities covered by the LAHCP could impact 1,358.4 hectares (3,356.7 acres) of Preble's habitat along 46.3 stream kilometers (28.8 stream miles), if all lands containing potential Preble's habitat within the CZ of the planning area are enrolled in the LAHCP. The
In addition to the proposed action, alternatives considered included—(a) no action, (b) development of individual conservation easements, and (c) waiting for Larimer County to develop and gain approval of a county-wide HCP. The draft EA analyzes the direct, indirect, and cumulative impacts of the proposed activities and mitigation on the Preble's, and also on other threatened or endangered species, vegetation, wildlife, wetlands, geology/soils, land use, cultural resources, air quality, and water resources and quality.
Two federally listed species, the threatened Preble's and the threatened bald eagle
This notice is provided pursuant to section 10(c) of the Act. We will evaluate the permit application, the EA/LAHCP, 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 development of new agricultural and residential structures and ongoing agricultural activities in the Livermore Area of northern Larimer County, Colorado. The final permit decision will be made no sooner than 60 days after the date of this notice.
Bureau of Land Management (BLM), Interior.
Notice.
This order terminates a BLM R&PP classification affecting 506.57 acres of public land near Las Cruces, New Mexico. This land will be opened to the public land laws generally, including the mining laws. The land has been and remains open to mineral leasing.
The land is described as follows:
The area described contains 506.57 acres in Dona Ana County.
The termination/opening order is effective February 12, 2004.
Bureau of Land Management, Las Cruces Field Office, 1800 Marquess, Las Cruces, New Mexico 88005.
Angel Mayes, Realty Specialist, at the address above or by telephone at (505) 525-4376.
By virtue of the authority vested in the Secretary of the Interior by the R&PP Act of June 14, 1926, as amended (43 U.S.C. 869
1. Pursuant to the regulations in 43 CFR 2091.7-1(b)(1) and the authority delegated by BLM Manual Section 1203 (43 FR 85), the classification decision of March 2,1985, which classified 506.57 acres of public land as suitable for recreation and public purposes under the Act of June 14, 1926, as amended (43 U.S.C. 869
2. At 8 a.m. on February 12, 2004, the land will be opened to the operation of the public land laws generally, subject to valid existing rights, the provisions of existing withdrawals, other segregations of record, and the requirements of applicable law. All valid application received at or prior to 8 am on February 12, 2004, shall be considered as simultaneously filed at that time. Those received thereafter shall be considered in the order of filing.
3. At 8 a.m. on February 12, 2004, the land will be opened to location and entry under the United States mining laws, subject to valid existing rights; the provisions of existing withdrawals; other segregations of record; and the requirements of applicable law. Appropriation of any of the land described in this order under the general mining laws prior to the date and time of restoration is unauthorized. Any such attempted appropriation, including attempted adverse possession under 30 U.S.C. 38 (1988), shall vest no rights against the United States. State law governs acts required to establish a location and to initiate a right of possession where not in conflict with Federal law. BLM will not intervene in disputes between rival locators over possessory rights since Congress has provided for such determinations in local courts.
Bureau of Land Management, Interior.
Recreation and public purpose lease/conveyance.
The lands described below are currently withdrawn from location and entry under the mining laws and from operation under the mineral leasing and geothermal leasing laws under Sec. 4(c) of the Southern Nevada Public Lands Management Act (Pub. L. 105-263), BLM serial number N-66364. The land has been examined and found suitable for lease/conveyance for recreation or public purposes under the provisions of the Recreation and Public Purposes Act, as amended (43 U.S.C. 869
Containing 17.5 acres, more or less, located at Windmill Road and Maryland Parkway.
The land is not required for any Federal purpose. The lease/conveyance is consistent with current Bureau planning for this area and is in the public interest. The lease/patent, when issued, will be subject to the provisions of the Recreation and Public Purposes Act and applicable regulations of the Secretary of the Interior, and will contain the following reservations to the United States:
1. A right-of-way thereon for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945).
2. All minerals shall be reserved to the United States, together with the right to prospect for, mine and remove such deposits from the same under applicable law and such regulations as the Secretary of the Interior may prescribe and will be subject to:
1. Easements in accordance with the Clark County Transportation Plan.
2. Those rights for roadway purposes which have been granted to Clark County by Permit N-42999 under the Act of October 21, 1976 (43 U.S.C. 1761).
3. Those rights for roadway purposes which have been granted to Clark County by Permit No. N-57458 under the Act of October 21, 1976 (43 U.S.C. 1761).
Detailed information concerning this action is available for review at the office of the Bureau of Land Management, Las Vegas Field Office, 4701 N. Torrey Pines Drive, Las Vegas, Nevada. Upon publication of this notice in the
Interested parties may submit comments involving the suitability of the land for a Cooperative Extension Office. Comments on the classification are restricted to whether the land is physically suited for the proposal, whether the use will maximize the future use or uses of the land, whether the use is consistent with local planning and zoning, or if the use is consistent with State and Federal programs.
Interested parties may submit comments regarding the specific use proposed in the application and plan of development, whether the BLM followed proper administrative procedures in reaching the decision, or any other factor not directly related to the suitability of the land for a Cooperative Extension Office. Any adverse comments will be reviewed by the State Director who may sustain, vacate, or modify this realty action. In the absence of any adverse comments, this realty action will become the final determination of the Department of the Interior. The classification of the land described in this Notice will become effective 60 days from the date of publication in the
Bureau of Land Management, Interior.
Notice of realty action.
The following land has been found suitable for direct sale under section 203 of the Federal Land Policy and Management Act of 1976 (90 Stat. 2750, 43 U.S.C. 1713) and the regulations at 43 CFR 2710.0-3(a)(3).
Mary Jo Rugwell at (505) 234-5907.
The land is hereby segregated from appropriation under the public land laws, including the mining laws. This segregative effect shall terminate upon issuance of patent or other document of conveyance for these lands, upon publication in the
In accordance with section 7 of the Taylor Grazing Act, 43 U.S.C. 315f, and Executive Order No. 6910, the described land is hereby classified for disposal by sale.
The disposal of this land is in conformance with the Carlsbad Resource Management Plan and meets the criteria contained in 43 CFR 2711.3-3(a)(5) because it is unmanageable as a part of the other BLM lands in that area. The subject land is not required for any other Federal purpose.
The land is to be offered for direct sale to Joe and Janet Cox to resolve the inadvertent unauthorized use of public land for their residence. This unauthorized use occurred many years ago prior to their ownership of the adjacent private property. The land will be offered at $2000, the appraised fair market value determined by an approved BLM appraisal.
The appraisal report for this disposal action can be reviewed at the address provided below. The patent, when issued, will reserve all minerals to the United States and will be subject to valid existing rights. Detailed information concerning the mineral reservation, as well as specific conditions of the sale, are available for review at the Carlsbad Field Office, Bureau of Land Management, 620 East Greene Street, Carlsbad, New Mexico 88220. For a period of 45 days from January 13, 2004, interested parties may submit comments to Russell Sorensen, Lead Realty Specialist, 620 East Greene Street, Carlsbad, NM 88220. Any adverse comments will be evaluated by the Field Manager, who may vacate or modify this realty action and issue a final determination. In the absence of objections, this realty action will become the final determination of the Department of the Interior.
Bureau of Land Management, Interior.
Notice of realty action; direct sale of public lands in Sweetwater County.
The Bureau of Land Management has determined that the lands described below are suitable for public sale under Section 203 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1713:
The lands described above contain 722.5 acres.
Jennifer Bates, Realty Specialist, Bureau of Land Management, Rock Springs Field Office, 280 Highway 191 North, Rock Springs, Wyoming 82901, 307-352-0344.
The Bureau of Land Management proposes to sell the surface estate of the above-described land to PacifiCorp, an adjacent landowner and current right-of-way holder, via direct sale, pursuant to Section 203 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1713. PacifiCorp wishes to acquire the land to protect its existing equities in the land. The lands are currently developed to contain two flue-gas desulphurization ponds, a fresh water pond, and other associated facilities, which are related to operation of the Jim Bridger Power Plant and are authorized by rights-of-way held by PacifiCorp. These lands have been sufficiently changed in character by the improvements associated with the rights-of-way, that disposal of these lands to PacifiCorp through direct sale is deemed to be in the public interest.
The proposed sale would be made at fair market value which has been determined to be $722,500. The proposed sale is consistent with the Green River Resource Management Plan and would serve important public objectives which cannot be achieved prudently or feasibly elsewhere. The lands contain no other known public values. The planning document, environmental assessment, and approved appraisal report covering the proposed sale are available for review at the Bureau of Land Management, Rock Springs Field Office, Rock Springs, Wyoming.
1. Reservation of a right-of-way to the United States for ditches and canals pursuant to the Act of August 30, 1890, 43 U.S.C. 945.
2. Reservation of all minerals pursuant to section 209(a) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1719.
3. All valid existing rights documented on the official public land records at the time of conveyance.
There will be a decrease of 722.5 Federal acres within the Rock Springs Grazing Allotment. The 72 AUMs associated with the 722.5 acre parcel will be canceled. The grazing lessee has waived the 2 year notification period and therefore, this proposed sale is in compliance with 43 CFR 4110.42(b).
The public lands described above shall be segregated from all forms of appropriation under the public land laws; including the mining laws, upon publication of this notice in the
For a period of 45 days after issuance of this notice, interested parties may submit comments to the Field Manager, Rock Springs Field Office, Bureau of Land Management, 280 Highway 191 North, Rock Springs, Wyoming 82901. Any adverse comments will be evaluated by the State Director who may sustain, vacate, or modify this realty action. In the absence of any objections, this proposed realty action will become final.
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSM) is announcing that the information collection request for the Permanent Program Performance Standards—Surface Mining Activities and Underground Mining Activities at 30 CFR Parts 816 and 817, has been forwarded to the Office of Management and Budget (OMB) for review and comment. The information collection request describes the nature of the information collection and the expected burden and cost.
OMB has up to 60 days to approve or disapprove the information collections but may respond after 30 days. Therefore, public comments should be submitted to OMB by February 12, 2004, in order to be assured of consideration.
To request a copy of the information collection request, explanatory information and related form, contact John A. Trelease at (202) 208-2783, or electronically to
The OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. OSM has consolidated two information collections relating to coal mining performance standards, revised burden estimates, where appropriate, to reflect current reporting levels or adjustments based on reestimates of burden or respondents. OSM has submitted a request to OMB to renew its approval of the collection of information contained in: Permanent Program Performance Standards—Surface Mining Activities at 30 CFR 816, and Underground Mining Activities at 30 CFR 817. OSM is requesting a 3-year term of approval for the information collection activity.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information
As required under 5 CFR 1320.8(d), a
Send comments on the need for the collection of information for the performance of the functions of the agency; the accuracy of the agency's burden estimates; ways to enhance the quality, utility and clarity of the information collection; and ways to minimize the information collection burdens on respondents, such as use of automated means of collections of the information, to the following addresses. Please refer to the appropriate OMB control number in all correspondence.
On the basis of the record
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations. The Commission will issue a final phase notice of scheduling, which will be published in the
On November 21, 2003, petitions were filed with the Commission and Commerce by Nation Ford Chemical Co., Fort Mill, SC, and Sun Chemical Corp., Cincinnati, OH, alleging that an industry in the United States is materially injured and threatened with material injury by reason of subsidized imports of carbazole violet pigment 23 from India and LTFV imports of carbazole violet pigment 23 from China and India. Accordingly, effective November 21, 2003, the Commission instituted countervailing duty and antidumping investigations Nos. 701-TA-437 and 731-TA-1060 and 1061 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determinations in these investigations to the Secretary of Commerce on January 5, 2004. The views of the Commission are contained in USITC Publication 3662 (January 2004), entitled Carbazole Violet Pigment 23 from China and India: Investigations Nos. 701-TA-437 and 731-TA-1060-1061 (Preliminary).
By order of the Commission.
International Trade Commission.
Institution and scheduling of an investigation under section 421(b) of the
Following receipt of a petition filed on January 6, 2004, on behalf of the U.S. member companies of The American Innerspring Manufacturers (AIM),
For further information concerning the conduct of this investigation, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 206, subparts A and E (19 CFR part 206), as amended, 68 FR 65164 (Nov. 19, 2003).
January 6, 2004.
Brian Allen (202-708-4728), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
In accordance with section 201.16(c) of the Commission's rules, each document filed by a party to the investigation must be served on all other parties to the investigation (as identified by the service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
This investigation is being conducted under the authority of section 421 of the Trade Act of 1974; this notice is published pursuant to section 206.3 of the Commission's rules.
By order of the Commission.
International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (ID) issued by the presiding administrative law judge (ALJ) in the above-captioned investigation amending the complaint and notice of investigation to add four entities as respondents in the investigation.
Andrea Casson, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-3105. Copies of all nonconfidential documents filed in connection with this
The Commission instituted this investigation on September 12, 2003, based on a complaint filed by American Biophysics Corp. (“ABC”) of North Kingstown, Rhode Island. 68 FR 24755. The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930 in the importation into the United States, sale for importation, and/or sale within the United States after importation of certain insect traps that infringe the claims of ABC's U.S. Patents No. 6,286,249 and No. 6,145,243. The notice of investigation identified one respondent, Blue Rhino Corp. (“BRC”) of Winston-Salem, North Carolina.
On November 10, 2003, ABC filed a motion to amend its complaint to add the following four entities as respondents in the investigation: Blue Rhino Consumer Products (“BRCP”), LLC of Winston-Salem, North Carolina; Blue Rhino Global Sourcing, LLC (“BRGS”), of Winston-Salem, North Carolina; Guangdong Dong Fang Imp. & Exp. Corp. of Shenzhen, China; and Lentek International, Inc. of Kissimmee, Florida. The Commission investigative attorney supported the motion. Existing respondent BRC and proposed respondents BRCP and BRGS filed a response indicating that they did not oppose the motion.
On December 8, 2003, the presiding administrative law judge issued an ID (Order No. 5) granting ABC's motion. No petitions for review of the ID were filed.
This action is taken under the authority of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, and section 210.42(h) of the Commission Rules of Practice and Procedure, 19 CFR 210.42(h).
By order of the Commission.
International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on December 9, 2003, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of NCR Corporation of Dayton, Ohio. An amended complaint was filed on December 24, 2003, and a supplement to the amended complaint was filed on December 29, 2003. The complaint, as amended and supplemented, alleges violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain signature capture transaction devices and component parts thereof, and systems that employ such devices, by reason of infringement of claims 20, 46, 55, and 65 of U.S. Patent No. 6,539,363. The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a permanent exclusion order and permanent cease and desist orders.
The complaint, except for any confidential information contained therein, is 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., Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
Jeffrey R. Whieldon, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2580.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2003).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain signature capture transaction devices, or component parts thereof, or systems that employ such devices by reason of infringement of claims 20, 46, 55, or 65 of U.S. Patent No. 6,539,363 and whether an industry in the United States exists as required by subsection (a)(2) of section 337.
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is—NCR Corporation, 1700 South Patterson Boulevard, Dayton, Ohio 45479-0001.
(b) The respondents are the following companies alleged to be in violation of section 337, and are parties upon which the complaint is to be served:
(c) Jeffrey R. Whieldon Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436, who shall be the Commission investigative attorney, party to this investigation; and
(4) For the investigation so instituted, the Honorable Charles E. Bullock is
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting the responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter a final determination containing such findings, and may result in the issuance of a limited exclusion order or cease and desist order or both directed against such respondent.
By order of the Commission.
The Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, Payments and Benefits Division has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until February 12, 2004. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to The Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-7285.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Mrs. Brenda E. Dyer, Deputy Clearance Officer, United States Department of Justice, Policy and Planning Staff, Justice Management Division, Suite 1600, Patrick Henry Building, 601 D Street NW., Washington, DC 20530.
The Department of Labor (DOL) has submitted the following public information collection requests (ICRs) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). A copy of each individual ICR, with applicable supporting documentation, may be obtained by calling the Department of Labor, Departmental Clearance Officer, Ira Mills ((202) 693-4122) or by e-Mail to
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for BLS, Office of Management and Budget, Room 10235, Washington, DC 20503 ((202) 395-6881), within 30 days from the date
The OMB 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,
Employee Benefits Security Administration, Department of Labor (the Department).
Notice of technical correction.
On January 5, 2004, the Department published PTE 2003-40 in the
Due to two technical errors appearing in the final exemption, the Department is hereby making certain revisions to the document. First, on page 375 of the notice granting the final exemption, the prohibited transaction exemption number, contained in the bracketed text at the beginning of the document, has been redesignated as “[Prohibited Transaction Exemption 2004-01; * * *],” to reflect the correct publication year and document number. Second, on page 383 of the grant notice, the final paragraph is revised to read as follows to reflect the correct signature date: “Signed at Washington, DC, this 30th day of December, 2003.”
Ms. Silvia M. Quezada of the Department at (202) 693-8553. (This is not a toll-free number.)
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on December 15, 2003 in response to a petition filed by a company official on behalf of workers at Aneco Trousers Corporation, Hanover, Pennsylvania.
The petitioning group of workers is covered by an earlier petition instituted on December 11, 2003 (TA-W-53,774) that is the subject of an ongoing investigation for which a determination has not yet been issued. Further investigation in this case would duplicate efforts and serve no purpose; therefore the investigation under this petition has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on November 17, 2003 in response to a petition filed by the company on behalf of workers at Bunnies by the Bay, Anacortes, Washington.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on December 4, 2003 in response to a petition filed by a company official on behalf of workers at Cone Mills Corporation, Corporate Headquarters, Greensboro, North Carolina.
The subject firm worker group is covered by an amended certification issued for workers of Cone Mills Corporation, Cone White Oak, LLC
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on December 4, 2003 in response to a petition filed by a company official on behalf of workers at Cone Mills Corporation, Salisbury Plant, Salisbury, North Carolina.
The subject firm worker group is covered by an amended certification issued for workers of Cone Mills Corporation, Salisbury, North Carolina, TA-W-53,291C. Consequently, further investigation would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on November 21, 2003 in response to a worker petition filed by a company official on behalf of workers at Extreme Tool and Engineering, Wakefield, Michigan.
The petitioner has requested that the petition be withdrawn. Consequently, further investigation would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on December 10, 2003 in response to a petition filed on behalf of workers of Finegood Moldings, Inc., dba Good Companies, Laminating Department, Carson, California.
The petitioning group of workers is covered by an active certification issued on April 21, 2003 and which remains in effect (TA-W-51,452). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on December 17, 2003 in response to a petition filed by a company official on behalf of workers at Flint River Textiles, Inc., Albany, Georgia.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
The United States Court of International Trade (USCIT) granted the Secretary of Labor's motion for a voluntary remand for further investigation in
The Department's initial negative determination for the workers of Mellon Bank, N.A. (hereafter “Mellon Bank”) was issued on April 14, 2003, and published in the
By letter to the U.S. Court of International Trade, filed on June 13, 2003, the petitioner requested administrative reconsideration. The petitioner asserted that the workers produced a product through development and creation of software and, therefore, were not service providers.
On remand, the Department conducted an investigation to determine whether the petitioners were production workers and, if so, whether the workers were eligible to apply for TAA. The remand investigation consisted of independent research and analysis of software as a commodity and requesting additional information from the petitioner and the company regarding the functions of the subject worker group and the operations of the subject company.
The remand investigation revealed that Mellon Bank provides financial services for corporations, institutions and wealthy individuals. These services include asset management, trust and custody securities lending, foreign
The remand investigation also revealed that the petitioning workers designed and developed computer software applications that allow the subject company to provide financial services to its customers, such as software that were custom-designed to fit end-users' needs and produced reports that are electronically transmitted to the customer. These applications are not sold as manufactured products to the general public or sold as a component to an article that is available to the general public.
While the Department considers workers who are engaged in the mass copying of software and manufacturing of the medium upon which the software is stored, such as compact disks and floppy disks, to be production workers, the Department does not consider the design and development of the software itself to be production and, therefore, does not consider software designers and developers to be production workers.
The U.S. Customs Service does not regard software design and development as a tangible commodity and determines the value of software based only on the cost of the carrier media, such as compact discs, floppy disks, records, and tapes. Further, computer software is not listed on the Harmonized Tariff Schedule of the United States (HTS), a code that represents an international standard maintained by most industrialized countries as established by the International Convention on the Harmonized Commodity Description and Coding.
Throughout the Trade Act, an article is often referenced as something that can be subject to a duty. To be subject to a duty on a tariff schedule, an article will have a value that makes it marketable, fungible and interchangeable for commercial purposes. While a wide variety of tangible products are described as articles and characterized as dutiable in the HTS, informational products that could historically be sent in letter form and that can currently be electronically transmitted are not listed in the HTS. Such products are not the type of employment work products that customs officials inspect and that the TAA program was generally designed to address.
After reconsideration on remand, I affirm the original notice of negative determination of eligibility to apply for adjustment assistance for workers and former workers of Mellon Bank, N.A., Pittsburgh, Pennsylvania.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on November 12, 2003, in response to a petition filed by a company official on behalf of workers at NTN-BCA Corporation, a wholly owned subsidiary of NTN-USA, Greensburg, Indiana.
The petitioner has requested that the petition be withdrawn. Consequently, further investigation would serve no purpose, and the investigation is terminated.
In accordance with section 223 of the Trade Act of 1974 (19 U.S.C. 2273) the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on July 29, 2003, applicable to workers of Pennsylvania House, Inc., Monroe, North Carolina. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of upholstered furniture.
Information shows that Pennsylvania House, Inc. and Clayton-Marcus Co., Inc. are wholly-owned subsidiaries of Ladd Furniture, Inc. Workers separated from employment at the subject firm had their wages reported under separate unemployment insurance (UI) tax accounts for Clayton-Marcus Co., Inc. and Ladd Furniture, Inc.
Accordingly, the Department is amending the certification to properly reflect this matter.
The intent of the Department's certification is to include all workers of Pennsylvania House, Inc. who were adversely affected by increased imports.
The amended notice applicable to TA-W-52,132 is hereby issued as follows:
All workers of Pennsylvania House, Inc., Clayton-Marcus Co., Inc., Ladd Furniture, Inc., Monroe, North Carolina, who became totally or partially separated from employment on or after June 23, 2002 through July 29, 2005, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on December 4, 2003 in response to a worker petition filed on behalf of workers at Philips Electronics, Advanced Transformers Division, Chicago, Illinois.
The petitioning group of workers is covered by an active certification issued on December 5, 2003 and which remains in effect (TA-W-53,614). Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on November 28, 2003 in response to a petition filed by a company official on behalf of workers at RMG Foundry, LLC, Mishawaka, Indiana.
The petitioner has requested that the petition be withdrawn. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on December 5, 2003 in response to a petition filed by a company official on behalf of workers at Teleperformance USA, Butte, Montana.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
The United States Court of International Trade (USCIT) granted the Department of Labor's request for voluntary remand of the negative determination on reconsideration in
The Department's denial of Trade Adjustment Assistance (TAA) for the workers of United Container Machinery, Inc., Glen Arm, Maryland was issued on November 29, 2002, and was published in the
By letter dated January 1, 2003, the petitioner requested administrative reconsideration of the negative determination. The petitioner alleged that the subject worker group should be eligible for TAA because they were previously certified, that the subject company imported competitive products from Hungary, and that the subject company's customers may be importing. The Notice of Negative Determination Regarding Application for Reconsideration was issued on March 25, 2003, and was published in the
In response to the petitioner's appeal to the U.S. Court of International Trade, the Department requested, and was granted, a voluntary remand.
In the remand investigation, the Department requested from company officials information regarding the history of the subject company, company imports, details of the merger in which the subject company acquired the facility in Hungary, customer information, and clarification about alleged foreign affiliations.
The remand investigation revealed that the subject facility produced processed corrugated rolls. Corrugated rolls are large metal cylinders that are used to produce corrugated material. A paper matter is squeezed between pairs of corrugated rolls to make large flattened sheets used to make corrugated boxes.
There are two versions of processed corrugated rolls: smooth and fluted. The Glen Arm, Maryland facility produces both smooth and fluted processed corrugated rolls. The Hungary plant makes only smooth processed corrugated rolls. The smooth and fluted rolls function in the same way “ a paper product is squeezed between the rolls to make large sheets of flat board. The process of making the two versions is the same, except that fluted rolls include an extra step of ridging (scoring the smooth surface so that it makes ridges in the end product). Further, the two versions produce the same end product—the end paper product of the smooth rolls is a large sheet of smooth flat board; the end paper product of the fluted rolls is a large sheet of fluted flat board. Thus, the two versions are like and directly competitive.
In July 2002, Barry-Wehmiller Company purchased United Container Machinery, Inc. The purchase included the Glen Arm, Maryland facility and the facility in Hungary.
The rolls made in Hungary are shipped to European customers and to the Glen Arm, Maryland facility. The smooth corrugated rolls sent to the Glen Arm, Maryland facility either satisfy domestic smooth corrugated roll customers or are processed to make fluted materials. The further processing includes ridging the smooth corrugated rolls, polishing the rolls, and testing the modified final product.
A careful review of the additional information supplied by the company revealed that the Glen Arm, Maryland facility experienced production and employment declines and that imports of processed corrugated rolls from Hungary remained steady during the corresponding time period. Therefore, the Department concludes the subject company increased its reliance upon imported processed corrugated rolls during the relevant time period.
After careful review of the additional facts obtained on the current remand, I conclude that there was an increased reliance on imported processed corrugated rolls like or directly competitive with those produced at the subject firm, and that such increased reliance on imports contributed importantly to the worker separations and sales or production declines at the
“All workers of United Container Machinery, Inc., Glen Arm, Maryland, who became totally or partially separated from employment on or after July 17, 2001, through two years from the issuance of this revised determination, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974.”
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on November 17, 2003, in response to a petition filed by the company on behalf of workers at Vector Tobacco, Inc., Timberlake, North Carolina (TA-W-53,555) and Vector Research LTD., Durham, North Carolina (TA-W-53,555A).
The petitioner has requested that the petition be withdrawn. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, an investigation was initiated on December 15, 2003, in response to a petition filed by a company official on behalf of workers at WestPoint Stevens, Lanier Mill, Valley, Alabama.
The petitioner has requested that the petition be withdrawn. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on November 25, 2003 in response to a petition filed by a company official on behalf of workers at Wormuth Brothers, Athens, New York.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Employment and Training Administration, Labor.
Cancellation of formal briefing.
Due to a lack of response from the regulated community and other interested parties in the Nashville, Tennessee, area, the Division of Foreign Labor Certification, Employment and Training Administration (ETA), Department of Labor, is canceling the previously announced formal briefing to be held on Thursday, January 22, 2004, from 9:30 a.m. to 4 p.m., in Nashville, Tennessee, and is instead concentrating its efforts on the January 15, 2004, employer briefing scheduled at the Holiday Inn Boxborough, 242 Adams Place, Boxborough, Massachusetts 01719 from 9:30 a.m. to 4 p.m.
Charlene Giles; telephone (202) 693-2950. (This is not a toll-free number.)
The formal public briefings will be chaired by an official of the Employment and Training Administration. Persons appearing at the briefings will be allowed a hands on experience with the system and to pose questions to Department staff.
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: Claim for Reimbursement-Assisted Reemployment (CA-2231). 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
Ms. Hazel M. Bell, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-3201, Washington, DC 20210, telephone (202) 693-0418, fax (202) 693-1451, E-mail
The Office of Workers' Compensation Programs (OWCP) administers the Federal Employees' Compensation Act (FECA). Section 8104(a) of the Act provides vocational rehabilitation services to eligible injured Federal employees that are paid from the Employees' Compensation Fund. Authority has been granted to OWCP to use amounts from the fund to reimburse a private sector employer who has hired a rehabilitated injured Federal employee for a portion of his or her salary. The information collected on Form CA-2231 provides OWCP with the necessary remittance information for the employer, documents the hours of work, certifies the payment of wages to the claimant for which reimbursement is sought, and summarizes the nature and costs of the wage reimbursement program for a prompt decision by OWCP. This information collection is currently approved for use through June 30, 2004.
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 the extension of approval to collect this information to ensure timely and accurate payments to eligible employers for reimbursement claims.
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.
5 U.S.C. 4314(c)(4) requires that the appointments of individuals to serve as members of performance review boards be published in the
By Direction of the Board.
The U.S. Nuclear Regulatory Commission (the Commission) has granted the request of FirstEnergy Nuclear Operating Company (the licensee) to withdraw its December 17, 2001, as supplemented by letter dated June 4, 2002, application for proposed amendment to Facility Operating License No. NPF-3 for the Davis-Besse Nuclear Power Station, Unit No. 1, located in Ottawa County, Ohio.
The proposed amendment would have modified the facility technical specifications (TS) pertaining to TS 3/4.3.1, “Reactor Protection System (RPS) Instrumentation,” to delete an Action involving either reducing core thermal power and the high neutron flux reactor trip setpoint, or monitoring quadrant power tilt when an RPS channel is inoperable. Additionally, changes were
The Commission had previously issued a Notice of Consideration of Issuance of Amendment published in the
For further details with respect to this action, see the application for amendment dated December 17, 2001, as supplemented by letter dated June 4, 2002, and the licensee's letter dated November 26, 2003, which withdrew the application for license amendment. 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 Systems (ADAMS) Public Electronic Reading Room on the internet at the NRC Web site,
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC or Commission) has received an application, dated January 6, 2004, from the Tennessee Valley Authority, filed pursuant to Section 104b of the Atomic Energy Act of 1954, as amended, and 10 CFR part 54, to renew Operating License Nos. DPR-33, DPR-52, and DPR-68 for the Browns Ferry Nuclear Plant, Units 1, 2 and 3, respectively. Renewal of the licenses would authorize the applicant to operate the facilities for an additional 20-year period. The current operating licenses for the Browns Ferry Nuclear Plant, Units 1, 2 and 3, expire on December 20, 2013, June 28, 2014, and July 2, 2016, respectively. The Browns Ferry Nuclear Plant, Units 1, 2 and 3, are boiling-water reactors designed by General Electric Corporation, and are located in Limestone County, Alabama. The acceptability of the tendered application for docketing, and other matters, including an opportunity to request a hearing, will be addressed in subsequent
Copies of the application are available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, or electronically from the Publicly Available Records (PARS) component of the NRC's Agencywide Documents Access and Management System (ADAMS) under accession number ML040060355. The ADAMS Public Electronic Reading Room is accessible from the NRC web site at
The staff has also verified that a copy of the license renewal application for the Browns Ferry Nuclear Plant, Units 1, 2 and 3 has been provided to the Athens-Limestone Public Library, at 405 South Street E, Athens, Alabama, 35611.
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an exemption from title 10 of the Code of Federal Regulations (10 CFR) part 50, section 50.68 for Facility Operating License Nos. DPR-80 and DPR-82, issued to Pacific Gas and Electric Company (the licensee), for operation of the Diablo Canyon Power Plant (DCPP), Unit Nos. 1 and 2, respectively, located in San Luis Obispo County, California. Therefore, as required by 10 CFR 51.21, the NRC is issuing this environmental assessment and finding of no significant impact.
The proposed action would exempt the licensee from the requirements of 10 CFR 50.68, “Criticality Accident Requirements,” for handling the 10 CFR part 72 licensed contents of the Holtec HI-STORM 100 Cask System.
The proposed action is in accordance with the licensee's application dated October 8, 2003, as supplemented on November 25, 2003.
10 CFR 50.68(b)(1) sets forth the following requirement that must be met, in lieu of a monitoring system capable of detecting criticality events:
Plant procedures shall prohibit the handling and storage at any one time of more fuel assemblies than have been determined to be safely subcritical under the most adverse moderation conditions feasible by unborated water.
The licensee is unable to satisfy the above requirement for handling of the 10 CFR part 72 licensed contents of the Holtec HI-STORM 100 Cask System. Section 50.12(a) allows licensees to apply for an exemption from the requirements of part 50 if the regulation is not necessary to achieve the underlying purpose of the rule and other conditions are met. The licensee has stated that compliance with 10 CFR 50.68(b)(1) is not necessary for handling the 10 CFR part 72 licensed contents of the cask system to achieve the underlying purpose of the rule.
The NRC has completed its evaluation of the proposed action and concludes
The proposed action will not significantly increase the probability or consequences of accidents, no changes are being made in the types or amounts 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 nonradiological impacts, the proposed action does not have a potential to affect any historic sites. It does not affect nonradiological plant effluents and has no other environmental impact. Therefore, there are no significant nonradiological 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 Diablo Canyon Power Plant, Unit Nos. 1 and 2, dated May 1973.
On December 15, 2003, the staff consulted with the California State official, Mr. Steve Hsu of the Radiologic Health Branch of the California Department of Health Services, 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 October 8, 2003, as supplemented on November 25, 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.
Nuclear Regulatory Commission.
Weeks of January 12, 19, 26, February 2, 9, 16, 2004.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and closed.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of January 26, 2004.
There are no meetings scheduled for the Week of February 2, 2004.
There are no meetings scheduled for the Week of February 9, 2004.
*The schedule for Commission meeting 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 January 6, the Commission determined pursuant to U.S.C. 552b(e) and § 9.107(a) of the Commission's rules that “Affirmation of SECY-03-0224 (Sequoyah Fuels Corp; State of Oklahoma's Petition for Review of LBP-03-25)” be held on January 8, 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
The Nuclear Regulatory Commission (NRC) has issued for public comment a proposed revision of a guide in its Regulatory Guide Series. Regulatory Guides are developed to describe and make available to the public such information as methods acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques used by the staff in evaluating specific problems or postulated accidents, and data needed by the staff in its review of applications for permits and licenses.
The draft guide is temporarily identified by its task number, DG-7003, which should be mentioned in all correspondence concerning this draft guide. Draft Regulatory Guide DG-7003, “Standard Format and Content of Part 71 Applications for Approval of Packaging for Radioactive Material,” is the proposed Revision 2 of Regulatory Guide 7.9. This revision is being developed to provide guidance on the preparation of applications for approval of packaging to be used for the shipment of Type B and fissile radioactive material.
This draft guide has not received complete staff approval and does not represent an official NRC staff position.
Comments may be accompanied by relevant information or supporting data. Written comments may be submitted by mail to the Rules and Directives Branch, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555; or they may be hand-delivered to the Rules and Directives Branch, Office of Administration, at 11555 Rockville Pike, Rockville, MD. Copies of comments received may be examined at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Comments will be most helpful if received by March 9, 2004.
You may also provide comments via the NRC's interactive rulemaking web site through the NRC home page (
Although a deadline is given for comments on these draft guides, comments and suggestions in connection with items for inclusion in guides currently being developed or improvements in all published guides are encouraged at any time.
Regulatory guides are available for inspection at the NRC's Public Document Room, 11555 Rockville Pike, Rockville, MD; the PDR's mailing address is USNRC PDR, Washington, DC 20555; telephone (301) 415-4737 or (800) 397-4209; fax (301) 415-3548; e-mail
For the Nuclear Regulatory Commission.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 12g3-2 (OMB 3235-0119; SEC File No. 270-104) provides an exemption from section 12(g) of the Securities Exchange Act of 1934 for foreign private issuers. Rule 12g3-2 is designed to provide investors in foreign securities with information about such securities and the foreign issuer. All information required by Rule 12g3-2 must be filed with the Commission and made available to the public upon request. It estimated that 1,800 foreign issuers make submissions pursuant to Rule 12g3-2 annually and it takes approximately one burden hour per response for a total annual burden of 1,800 hours. It is estimated that 100 percent of the burden is prepared by the filer.
Rules 7a-15 through 7a-37 (OMB 3235-0132; SEC File No. 270-115) set forth the general requirements relating to applications, statements and reports that must be filed under the Trust Indenture Act of 1939 by issuers and trustees qualifying indentures for offerings of debt securities. The respondents are persons and entities subject to the Trust Indenture Act requirements. Rules 7a-15 through 7a-37 are disclosure guidelines and do not directly result in any collection of information. The Rules are assigned only one burden hour for administrative convenience.
Rule 13e-1 (OMB 3235-0305; SEC File No. 270-255) makes it unlawful for an issuer who has received notice that it is the subject of a tender offer made under 14(d)(1) of the Act and which has commenced under Rule 14d-2 to purchase any of its equity securities during the tender offer unless it first files a statement with the Commission containing information required by the Rule. This rule is in keeping with the Commission's statutory responsibility to prescribe rules and regulations that are necessary for the protection of investors. Public companies are the respondents. Rule 13e-1 submissions take approximately 10 burden hours to prepare and are filed by 20 respondents. It is estimated that 25 percent of 200 total burden hours (50 hours) is prepared by the company. The remaining 75 percent of the total burden is attributed to outside cost.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Written comments regarding the above information should be directed to the following persons: (i) Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10202, New Executive Office Building,
One Liberty Properties, Inc., a Maryland corporation (“Issuer”), has filed an application with the Securities and Exchange Commission (“Commission”), pursuant to Section 12(d) of the Securities Exchange Act of 1934 (“Act”)
The Board of Directors of the Issuer unanimously approved a resolution on December 15, 2003 to withdraw the Issuer's Security from listing on the Amex and to list the Security on New York Stock Exchange (“NYSE”). The Issuer states that it is taking such action to avoid the direct and indirect costs and the division of the market resulting from dual listing on Amex and NYSE.
The Issuer stated in its application that it has met the requirements of Amex Rule 18 by complying with all applicable laws in the State of Maryland, in which it is incorporated, and with the Amex's rules governing an issuer's voluntary withdrawal of a security from listing and registration.
The Issuer's application relates solely to the withdrawal of the Securities from listing on the Amex and from registration under Section 12(b) of the Act
Any interested person may, on or before February 3, 2004, submit by letter to the Secretary of the Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609, facts bearing upon whether the application has been made in accordance with the rules of the Amex and what terms, if any, should be imposed by the Commission for the protection of investors. The Commission, based on the information submitted to it, will issue an order granting the application after the date mentioned above, unless the Commission determines to order a hearing on the matter.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Amex proposes to adopt a facilitation rule and a member firm participation guarantee for member firms facilitating transactions in Portfolio Depositary Receipts and Index Fund Shares and to codify the Exchange's policy prohibiting the use of non-public information received during the facilitation process. The text of the proposed rule change, as amended, is set forth below.
(a) through (b) No change.
.01 through .04 No change.
(
(a) through (b) No change.
.01 through .05 No change.
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 IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Amex is proposing amendments to Amex Rules 1000 and 1000A to provide for the adoption of a facilitation rule and participation guarantee for member firms facilitating public customer orders in Portfolio Depositary Receipts and Index Fund Shares (“Index Shares”). As explained by Amex, a facilitation order is utilized to cross a public customer order with an order for a member firm. Other market participants can compete only with the member firm order by accepting the bid or offer made on behalf of the public customer. According to Amex, since, under the proposed facilitation rule, other market participants would not be permitted to compete with the public customer side of the order, using the facilitation rule will assure that the public customer's order is completely executed. Members wishing to engage in a facilitation cross on behalf of their public customers would be required to comply with the procedures set forth in the proposed amendments.
Amex states that member firms, however, believe that when seeking to facilitate large public customer Index Share orders with an order for the firm's own proprietary account, they should be able to participate to some extent with their customer's order. Therefore, Amex proposes that Commentary .05 to Rule 1000 and Commentary .06 to Rule 1000A be adopted to provide that a member firm whose proprietary account is facilitating its own customer's order of 25,000 Index Shares or more may participate as contra-party to the extent of either 50% or 40% the trade.
Amex states that member firms should be aware that public customer orders on the specialist's book or represented in the crowd would have priority over the member firm's guaranteed participation, and that therefore, a member firm's minimum participation would be 50% or 40% of the number of Index Shares remaining after the public customer orders with priority have been filled. For example, if there is a public customer order on the book or represented in the trading crowd for 10,000 Index Shares to buy, the member firm facilitating its customer order to sell 25,000 Index Shares would have a guaranteed 50% or 40% participation on only the remaining 15,000 Index Shares.
In addition, proposed subparagraphs 2(c) of Commentary .05 to Rule 1000 and Commentary.06 to Rule 1000A set forth the specialist's participation in executed shares allocated after all public customer orders and the member firm's facilitation order have been satisfied. Subparagraphs 2(c) provide that the specialist would be allocated the greater of either (i) 10% of the executed shares if the facilitating member firm, pursuant to subparagraphs (2)(a)(i) of Commentary .05 to Rule 1000 and Commentary.06 to Rule 1000A, has participated to the extent of 40% of the executed shares; or (ii) a share of the executed shares that have been divided equally among the specialist and other participants to the trade.
The Exchange believes that providing member firms that are seeking to facilitate their own public customer orders with a guaranteed participation will provide an incentive for the member firms to bring large Index Share orders to the floor of the Amex rather than to the floor of another exchange or to the over-the-counter market. Thus, the Exchange believes that this proposal is necessary for it to remain competitive.
The adoption of Commentary .06 to Rule 1000 and Commentary .07 to Rule 1000A would prohibit the use of non-public information received during the facilitation processes. As discussed above, facilitation orders are orders in which a member or member organization executes a crossing transaction with an order for a public customer. The facilitation rule provides procedures that allow the customer's order to be completely executed and prohibits the trading floor from supplanting the customer.
Amex states that since the proposed facilitation rule is designed to promote the interaction of orders in an open-outcry auction, the proposed rule requires the disclosure of information to the trading crowd in order to provide the crowd with an opportunity to participate in the transaction with the facilitating member. These proposed rules impose order exposure requirements on floor brokers seeking to cross buy orders and sell orders, and seek to reconcile these practices with the rules and practices of the auction market. According to Amex, affording trading crowds an opportunity to participate in transactions from which they may be excluded results in more competitive markets and executions for customers at the best available prices. In furtherance of that effort, the Exchange now seeks to codify and expand its policy that prohibits the use of non-public information, by either a member or a person associated with a member, for their own benefit, by trading in the Index Shares or in related instruments prior to that information being disclosed. Use of such non-public information by such member or associated person (regardless of whether that party ultimately completes the Index Shares transaction) is generally considered conduct inconsistent with just and equitable principles of trade.
Thus, Amex proposes to adopt provisions for both Portfolio Depositary Receipts and Index Fund Shares that state that it may be inconsistent with just and equitable principles of trade for any member or associated person, who has knowledge of all the material terms of (i) an order being facilitated, or (ii) orders being crossed, to enter an order to buy or sell an Index Share or other related instrument prior to the time the order's terms are disclosed to the trading floor crowd or the execution of the facilitated transaction can no longer reasonably be considered imminent. The term “related instrument” is defined in the proposed rules as a security comprising ten percent or more of the component securities in the Portfolio Depositary Receipt or the Index Fund Share or a futures contract on any economically equivalent index.
Amex states that the purpose of this policy is to prevent members and associated persons from using undisclosed information about imminent Index Share transactions to trade the relevant Index Shares or any closely-related instrument in advance of persons represented in the trading crowd. Without this prohibition, such trading can threaten the integrity of the auction market or disadvantage other market participants.
The Exchange states that the proposed rule change is consistent with Section 6(b) of the Act in general and furthers the objectives of Section 6(b) 5 in particular in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanism of a free and open market and a national market system.
The Exchange does not believe that the proposed rule change will impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
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 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 Exchange proposes to retroactively apply a fee cap of $72,000 per month in any single options class for specialists and registered options traders (“ROTs”) subject to options transaction fees from July 1, 2003 to November 30, 2003. The text of the proposed rule change is available at the Amex and at the Commission.
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.
The Amex proposed, in a companion filing (SR-Amex-2003-104),
The Exchange believes that specialists and ROTs who bring in substantial order flow to the Exchange should be rewarded through the proposed fee reduction. As proposed, specialists and ROTs in any single option class will be required to trade 200,000 contracts for equity options and 232,258 contracts in index options to reach the fee cap (based on the current rate of $0.36 per contract side). However, as indicated in SR-Amex-2003-104,
The Exchange believes that the proposed fee change is consistent with Section 6(b)(4) of the Act
The Amex believes the proposed rule change will impose no burden on competition.
No written comments were solicited or received with respect to 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:
The Amex has asked the Commission to approve the proposed rule change, as amended, on an accelerated basis, so that the fee reduction can be allocated in 2003 and the Amex and its member firms may close its books for the year 2003.
The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange, and in particular, the requirements of Section 6(b)(4) of the Act.
The Commission finds good cause for approving the proposed rule change, as amended, prior to the thirtieth day after the date of publication of the notice of filing thereof in the
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 Amex proposes to list and trade, under Section 107A of the Amex Company Guide, Targeted Efficiency Equity Securities (or “Notes”) of Wachovia Corporation, the return on which is based on the performance of the Standard & Poor's 500 Stock Index,
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 had 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 Amex Company Guide, the Amex 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.
Wachovia will issue the Notes in denominations of whole “Units,” with each Unit representing a single Note. The original public offering price will be $5 per Note. The Notes will provide for an annual calculation of the percentage change of the S&P 500 Index so that any positive performance of the S&P 500 Index during each Annual Calculation Period will be doubled subject to a maximum payment amount or ceiling. An investor in the Notes will be subject to the full extent of a negative return of the S&P 500 Index in any Annual Calculation Period. According to the Amex, the S&P 500 Index value is disseminated at least once every fifteen seconds throughout the trading day over the Consolidated Tape Association's Network B.
The Notes will entitle the owner at maturity to receive an amount based upon the sum of annual percentage changes of the S&P 500 Index during the term of the Notes, not to exceed a maximum payment (the “Capped Amount”), to be determined on the date of issuance of the Notes. During each Annual Calculation Period, if the value of the S&P 500 Index has increased as compared to the Initial Index Value, the annual return will equal two times the amount of that percentage increase, not to exceed the Capped Amount. If the value of the S&P 500 Index has decreased as compared to the Initial Index Value during the annual calculation period, the annual return will equal the full negative or downside percentage change. This negative return will not be limited by a floor. The Notes will not have a minimum principal amount that will be repaid, and accordingly, are fully exposed to any decline in the level of the S&P 500 Index.
The Redemption Amount is the payment that the holder or investor will receive based on the sum of the annual returns (“Index Return”) of the S&P 500 Index determined at each Annual Calculation Period. For each Annual Calculation Period, the Initial Index Value will be the closing level of the S&P 500 Index on the first day of the Annual Calculation Period. The Final Index Value is the closing value of the S&P 500 Index on the last day of the Annual Calculation Period. If the Final Index Value is greater than the Initial Index Value, the calculation of the Index Return is set forth below:
If the Final Index Value is less than the Initial Index Value, the calculation of the Index Return is set forth below:
The Redemption Amount for a Note equals the principal amount per Note multiplied by the sum of one plus the Index Return: $5 × [1 + Index Return]
The Notes are cash-settled in U.S. dollars and do not give the holder any right to receive a portfolio security, dividend payments, or any other ownership right or interest in the portfolio or index of securities comprising the S&P 500 Index. The Notes are designed for investors who want to participate or gain exposure to the S&P 500 Index, subject to a cap, and who are willing to forego market interest payments on the Notes during such term. The Commission has previously approved the listing of options on the S&P 500 Index, as well as securities the performance of which is linked to or based on the S&P 500 Index.
As of November 20, 2003, the market capitalization of the securities included in the S&P 500 ranged from a high of $289.478 billion to a low of $629 million. The average daily trading volume for these same securities for the last six months ranged from a high of 44.909 million shares to a low of 10.673 million shares and from a high of 1.966 million shares to a low of 0.127 million shares, respectively.
Because the Notes are linked to an equity index and are issued in a denomination other than $1,000, the Amex's existing equity floor trading rules will apply to the trading of the Notes. First, pursuant to Amex Rule 411, the Amex would 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 Notes.
The Amex represents that its surveillance procedures are adequate to properly monitor the trading of the Notes. Specifically, the Amex will rely on its existing surveillance procedures governing equities, which have been deemed adequate under the Act. In addition, the Amex also has a general policy which prohibits the distribution of material, non-public information by its employees.
The Amex believes that the proposed rule change is consistent with section 6(b) of the Act
The Amex does not believe that the proposed rule change will impose any burden on competition.
The Amex 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 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 a 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 Notes will provide investors who are willing to forego market interest payments during the term of the Notes with a means to participate or gain exposure to the S&P 500 Index, subject to a cap. At maturity, the holder of a Note will receive an amount based upon the Index Return determined at each Annual Calculation period of the S&P 500 Index. Specifically, the holder of a Note will be entitled to receive a payment based on whether the Final Index Value is greater or less than the Initial Index Value. If the Final Index Value is greater than the Initial Index Value, the holder of the Notes will receive the Index Return equal to two times the amount of that percentage increase, not to exceed the Capped Amount. If the Final Index Value is less than or equal to the Initial Index Value, the annual return will equal the full negative or downside percentage change.
The Commission notes that the Notes are not leveraged and are not principal-protected instruments. The Notes are debt instruments whose price will be derived and based upon the value of the S&P 500 Index. The Notes do not have a minimum principal amount that will be repaid at maturity, and the payments of the Notes prior to or at maturity may be less than the original issue price of the Notes. Thus, if the value of the S&P 500 has declined at maturity, the holder of the Note will receive less than the original public offering price of the Note. Accordingly, the level of risk involved in the purchase or sale of the Notes is similar to the risk involved in the purchase or sale of traditional common stock. Because the final rate of return of the Notes is derivatively priced, based on the performance of the 500 common stocks underlying the S&P 500 Index, and because the Notes are instruments that do not guarantee a return of principal, there are several issues regarding the trading of this type of product. For the reasons discussed below, however, the Commission believes that the Amex's proposal adequately addresses the concerns raised by this type of product.
The Commission notes that the Amex's rules and procedures that address the special concerns attendant to the trading of hybrid securities will be applicable to the Notes. In particular, by imposing the hybrid listing standards, suitability, disclosure, and compliance requirements noted above, the Amex, in the Commission's view, has addressed adequately the potential problems that could arise from the hybrid nature of the Notes. The Amex will require members, member organizations, and employees thereof recommending a transaction in the Notes to: (1) Determine that such transaction is suitable for the customer, and (2) have a reasonable basis for believing that the customer can evaluate the special characteristics and bear the financial risks of such transaction.
Moreover, the Commission notes that the Amex will distribute a circular to its membership calling attention to the specific risks associated with the Notes. The Commission also notes that Wachovia will deliver a prospectus in connection with the initial sales of the Notes. In addition, the Commission notes that Amex will incorporate and rely upon its existing surveillance procedures governing equities. The Commission believes that the Amex has appropriate surveillance procedures in place to detect and deter potential manipulation for similar index-linked products.
As discussed more fully above, the underlying stocks that make up the S&P 500 Index are well-capitalized, highly liquid securities. Moreover, the issuers of the underlying securities that make up the S&P 500 Index are subject to reporting requirements under the Act, and all of the component stocks are either listed or traded on, or traded through the facilities of, the NYSE, the Amex, or the Nasdaq National Market. The Commission notes that the S&P 500 Index is determined, calculated, and
Given the large trading volume and capitalization of the compositions of the stocks underlying the S&P 500 Index, the Commission believes that the listing and trading of Notes based on the performance of the S&P 500 Index should not unduly impact the market for the underlying securities comprising the S&P 500 Index or raise manipulative concerns. Additionally, the Commission believes that the Amex's surveillance procedures will serve to deter as well as detect any potential manipulation.
Furthermore, the Commission notes that the Notes depend upon the individual credit of the issuer, Wachovia. To some extent this credit risk is minimized by the listing standards in section 107A of the Amex Company Guide, which provide that only issuers satisfying substantial asset and equity requirements may issue securities such as the Notes. In addition, the Amex's “Other Securities” listing standards further require that the Notes have a market value of at least $4 million.
The Commission does have a concern, however, that a broker-dealer such as Wachovia, or a subsidiary providing a hedge for the issuer, will incur position exposure. As the Commission has concluded in previous approval orders for other hybrid instruments issued by broker-dealers,
Finally, the Commission notes that the value of the S&P 500 Index will be disseminated at least once every fifteen seconds throughout the trading day over the Consolidated Tape Association's Network B. The Commission believes that providing access to the value of the S&P 500 Index at least once every fifteen seconds throughout the trading day is extremely important and will provide benefits to investors in the product.
The Commission finds good cause for approving the proposed rule change prior to the thirtieth day after the date of publication of notice thereof in the
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 the following changes to its Options Fee Schedule: (i) A transaction fee cap of $72,000 per month in any single options class, exclusive of the options licensing fee, for specialists and registered options traders (“ROTs”), and (ii) a market share fee program for the top 300 equity options that would reduce transaction fees paid by specialists and ROTs in such classes if a 20% or greater monthly market share is maintained. The text of the proposed rule change is available at the Amex and at the Commission.
In its filing with the Commission, the Amex included statements concerning
The Exchange is proposing to adopt a transaction fee cap of $72,000 per month in any single options class, exclusive of the options licensing fee, for specialists and ROTs. Specialists and ROTs that have incurred transaction fees, which include the options transaction fee, the options comparison fee, and the options floor brokerage fee, greater than $72,000 per month in any single options class going forward, will now be billed at the capped fee of $72,000.
The Exchange believes that specialists and ROTs who bring in substantial order flow to the Exchange should be rewarded through the proposed fee reduction. As proposed, specialists and ROTs in any single option class will be required to trade 200,000 contracts for equity options and 232,258 contracts in index options to reach the cap (based on the current rate of $0.36 per contract side). However, the number of contracts required to reach the fee cap in the top 300 equity options may increase as a result of the market share fee program described below. Although the Exchange submits that only a small number of firms will reach these limits, the proposal is intended to provide additional incentives to firms to continue to attract order flow.
The Exchange is proposing to adopt a market share fee program for the top 300 equity options (“Program”). The Program will commence on December 1, 2003. The Program is designed to provide incentives to specialists and ROTs to maintain and increase the Exchange's market share of total national volume in the top 300 equity option classes.
The Amex believes the Program will provide incentives to maintain highly competitive quotes by reducing the applicable options transaction fees as long as the specialist or ROT maintains a 20% market share on a monthly basis.
Specialists and ROTs in the top 300 equity option classes who maintain an Amex market share of at least 20% in those classes in a particular month will receive a lower options transaction fee for their transactions in those classes during that month. The revised options transaction fee will be as follows:
Because clearing firms for specialists and ROTs are unable to immediately calculate the effective transaction fee based upon the relevant market share, the Exchange will implement a manual procedure. Specifically, at the end of each month, the Exchange will calculate the market share of each option class and then send the appropriate credit amount through to each clearing firm for the account of the specialist or ROT. The credit amount is the amount such specialist or ROT overpaid for those option transactions that are subject to the lower fee.
The program is intended to provide positive incentives for specialists/ROTs to increase or maintain their market shares by continuing to provide highly competitive quotes. The Exchange further believes that those specialists and ROTs that provide substantial order flow to the Exchange should be rewarded through the proposed fee reduction.
The Exchange believes the proposal is consistent with Section 6(b) of the Act,
The Exchange does not believe the proposed rule change will impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
The proposed rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street NW., Washington, DC 20549-0609. 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,
Amex proposes to amend Amex Rule 970 (Comparison of Option Transactions Excluded From Clearance) to make the processes for resolving uncompared transactions in its intra-day options and equities comparison systems more consistent.
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 IV below. The Amex has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Amex Rule 970 sets forth the process by which Amex members reconcile uncompared option transactions on the business day following the trade date, or T+1.
In July 1992, Amex introduced the Intra-day Comparison System for Options (the “IDCO”) to facilitate the intra-day comparison of option trades and the reconciliation of uncompared option trades. The IDCO provides an electronic input and correction facility for option transactions executed on Amex. Specifically, the system displays uncompared options trades and option advisory trades and delivers an electronic ROTN to the appropriate contra-party. In addition, the system allows members or member organizations to accept or reject a ROTN, to correct or delete uncompared trades, and to add new trades for comparison where necessary.
Amex proposes to amend Rule 970 by adopting a format consistent with that of Amex Rule 731, which sets forth a similar process for resolving uncompared equity transactions and the use of the Intra-Day Comparison System for Equities (“IDCE”). With login and password safeguards to protect members against unauthorized rejections and acceptances of electronic ROTNs, Amex believes that the use of the IDCO renders unnecessary the requirement that members manually sign paper ROTNs for each uncompared option transaction. With the exception of eliminating the manual signature requirement for paper ROTNs, Amex does not propose any other change to the comparison process for option transactions. For clarity and consistency, Amex proposes to supplement and preserve the current language of Rule 970 in new Commentary.
Amex believes that the proposed rule change is consistent with section 6(b) of the Act
Amex does not believe that the proposed rule change will impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
Within thirty-five 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 is consistent with 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”),
BSE is seeking to amend various Articles of its Constitution and Sections of its Rules to clarify the liability of BSE in relation to its members' contractual obligations.
In its filing with the Commission, BSE 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. BSE 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 amend certain sections of the BSE Constitution and Rules to clarify BSE's liability in relation to its members' contractual obligations.
In particular, BSE is seeking to modify Articles XII and XIII of its Constitution to insure that any BSE member who is a party to a transaction remains solely liable for the transaction. This language is consistent with similar language and approaches of other exchanges in limiting the liability of an exchange with respect to contracts entered into by members.
Likewise, BSE is seeking to amend other sections of its rules consistent with this theme. In Chapter III, “Comparisons—Liability on Contracts,” Section 4, “Failures to Compare,” the proposed language would state that BSE shall have no liability to any of the original parties to a contract entered into by a member. Also, in Chapter VI, “Failure to Fulfill Contracts,” Section 1, “Closing Contracts,” the proposed language would make clear that no action taken by BSE in closing or assisting to close a contract entered into by a BSE member shall have the effect of transferring any liability related to that contract to BSE. Chapter VI, Section 2, “Notice of Closing Contracts,” would echo this approach for instances in which BSE takes action to attempt to close a contract on behalf of a member in default. None of these changes are in response to any recent circumstance. They are only aimed at clarifying BSE's unique position in relation to assisting its members in other contractual matters exclusively linked to conducting transactions in the buying and selling of equity securities.
BSE believes that the proposal is consistent with the requirements of Section 6(b) of the Act and furthers the objectives of Section 6(b)(5), in particular, in that it is designed to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, in that it is designed to protect investors and the public interest and is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers.
BSE does not believe that the proposed rule change will impose any burden on competition.
BSE has neither solicited nor received comments on the proposed change.
Within thirty-five 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 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:
All submissions should refer to File No. SR-BSE-2002-06 and should be submitted by February 3, 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”),
BSECC is seeking to delete or amend certain Sections of its Rules to clarify BSECC's liability and clearing agency services.
In its filing with the Commission, BSECC 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. BSECC 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 delete or amend certain sections of the BSECC Rules to clarify BSECC's liability and clearing agency services.
BSECC is seeking to make several changes to its Rules as they pertain to BSECC's liability in order to maintain a consistent approach with the Boston Stock Exchange's (“BSE”) proposed rule changes clarifying BSE's liability in relation to its members' contractual obligations.
• Clarify in Rule II, Section 1, that BSECC's clearing fund is to make good losses suffered by BSECC without the losses of its members having priority;
• Eliminate a provision in Rule II, Section 5(e), which allows the retained earnings of BSECC to be used to satisfy any loss or liability resulting from a BSECC member's default;
• Eliminate Rule III, Section 4, stating that BSECC guarantees settlement of all trades executed on the floor of BSE;
• Strengthen the BSECC indemnification clause, Rule XII, section 6, by stating that each member will remain “solely responsible” and liable for its transactions;
• Amend Rule III, section 3(e), to make BSECC loans to members discretionary, not automatic. The current automatic loan provision is inconsistent with the purpose of the proposed rule change that members will be solely liable for their transactions and that BSECC is not the ultimate guarantor for its members; and
• Amend Rule XI, section 3 to increase the fine from $5,000 to $30,000 for violations of BSECC Rules.
The proposed rule change would delete all references to Boston Representative Broker/Dealer Accounts, BSE Service Corporation, and Institutional Members. Such references are no longer applicable as they relate to services or lines of business in which BSECC is no longer involved. Also, BSECC has in various places added references to NSCC to make consistent BSECC's references to NSCC in its Rules and to clarify that BSECC will perform functions for the usual settlement of transactions with NSCC and DTC on behalf of BSECC members upon request.
BSECC is not seeking these amendments in response to any recent or perceived action by any of its members. Rather, BSECC is seeking to clarify, by eliminating inconsistencies and providing succinct language, the position which it holds with respect to liability on the part of its members. Moreover, BSECC is seeking to maintain a consistent approach in the application of its various regulatory responsibilities
BSECC believes that the proposed rule change is consistent with the requirements of section 17A of the Act
BSECC does not believe that the proposed rule change will impose any burden on competition.
BSECC has neither solicited nor received comments on the proposed change.
Within thirty-five 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 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:
All submissions should refer to File No. SR-BSECC-2003-01 and should be submitted by February 3, 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”)
The CBOE proposes to amend CBOE Rule 4.6 (False Statements) and adopt new CBOE Rule 4.22 to distinguish willfully made or material misrepresentations or omissions from other misrepresentations or omissions. The Exchange also proposes to amend CBOE Rule 17.50 to provide a new summary fine schedule for violations of proposed CBOE Rule 4.22. The text of the proposed rule change is below. Additions are italicized; deletions are in brackets.
RULE 4.6 No member,
(a)-(b) Unchanged.
(c)(1) Any person against whom a fine is imposed pursuant to subsection (g)(1), (g)(2), (g)(3), (g)(4), (g)(5), (g)(8), (g)(9), [or] (g)(10)
(2)-(4) Unchanged.
(d)-(f) Unchanged.
(g)
(1)-(10) Unchanged.
Interpretations and Policies:
.01-.04 Unchanged.
In its filing with the Commission, the CBOE 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 Exchange is proposing to amend CBOE Rule 4.6 (False Statements), which prohibits members and applicants for membership from making any false statement or misrepresentation to the Exchange or the Options Clearing Corporation (“OCC”), or from adjusting any position at OCC except to correct a bona fide error or transfer a position to another account. The purpose of the proposed rule change is to: (i) Distinguish willful or material misrepresentations (including misstatements and false statements) and omissions from other misrepresentations and omissions; and (ii) provide that non-willful and non-material misrepresentations, omissions and improper option position adjustments may be dealt with under the Exchange's minor rule violation fine plan rather than with formal disciplinary action.
CBOE Rule 4.6 addresses three categories of prohibited conduct: false statements, misrepresentations, and improper position adjustments. The grouping of these three categories under a single heading “False Statements” has resulted in comments by members that a member could be charged by the Exchange with violating CBOE Rule 4.6 for conduct that does not rise to the level of a false statement, such as a minor misstatement or omission, and that such charge would unfairly characterize their conduct due to the fact that the rule is titled “False Statements.” According to members, if such charges were brought by the Exchange against a member and the charges or the settlement of the Exchange investigation are publicly disclosed, an appearance may be created that a respondent was found to have made false statements, when in fact the conduct was less egregious.
Current CBOE Rule 4.6 applies to any false statement or misrepresentation made by a member, person associated with a member or applicant for membership in a communication to the Exchange or OCC, regardless of whether the false statement or misrepresentation was made knowingly or was of a material fact. Current CBOE Rule 4.6 does not distinguish between willfully made or material false statements and misrepresentations and other less serious types of misstatements and misrepresentations. Member firms have commented to the Exchange that if a member firm employee is charged with violating CBOE Rule 4.6 for a minor misstatement, he may lose employment because of the apparent seriousness of being charged with making a “False Statement” even though the actual violative conduct and penalty imposed by the Exchange may be less severe.
The Exchange proposes to limit the scope of CBOE Rule 4.6 to willfully made or material misrepresentations (which includes misstatements and false statements) and omissions by members, associated persons of members, or applicants for membership in communications to the Exchange or OCC. Misrepresentations and omissions of a less serious nature (those that are neither willfully made nor of a material fact) are distinguished from the foregoing in that they are proposed to be prohibited by new CBOE Rule 4.22. Improper option position adjustments are proposed to be covered by both rules to give the Exchange the flexibility to charge a violation of CBOE Rule 4.6 in those situations involving a serious offense. CBOE Rule 4.6 is proposed to be renamed “Misrepresentations or Omissions.” The Exchange believes that the proposed rule changes will clarify for members how the Exchange applies these rules.
By amending CBOE Rule 4.6 and adding new CBOE Rule 4.22, the Exchange also intends to provide a clearer, more concise statement of the disciplinary penalties that apply to misrepresentations and omissions to the Exchange or the OCC. Willful or material misrepresentations or omissions in communications to the Exchange or OCC and willful or material improper position adjustments would be charged under revised CBOE Rule 4.6. CBOE Rule 4.6 would continue to be applied in those instances involving a serious offense that carries substantial penalties for violation such as large fines and suspension or expulsion from membership.
Misrepresentations or omissions in communications to the Exchange or OCC and improper position adjustments that are neither willfully made nor of a material nature could be charged under new CBOE Rule 4.22. Offenses charged under proposed CBOE Rule 4.22 will allow the Exchange to fashion more appropriate disciplinary measures. A violation of proposed CBOE Rule 4.22 may be deemed minor in nature and therefore subject to summary fine. CBOE Rule 17.50 (Minor Rule Violation Fine Plan) is proposed to be amended to add a new fine schedule applicable to violations of proposed CBOE Rule 4.22. However, nothing in proposed CBOE Rule 4.22 shall prevent the Exchange, whenever it determines that any violation of that Rule is intentional, egregious, or otherwise not minor in nature, from proceeding under the Exchange's formal disciplinary rules.
The proposed rule changes are similar to existing rules at other exchanges that distinguish between willfully made false or misleading statements or omissions of material fact and other types of statements or omissions.
The Exchange believes that the proposed rule change will advance the objectives of Section 6(b)(6) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
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 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 Exchange proposes to revise the procedures for executing stock-option orders by: (1) automating the transmission of the stock leg(s) of a stock-option combination order to a broker-dealer on behalf of members; and (2) allowing for the pricing of the options leg(s) of stock-option combination orders in penny increments.
The text of the proposed rule change appears below. New text is in italic. Deleted text is in brackets.
(b) Applicability of Exchange Rules. Except as otherwise provided in this Rule, complex orders shall be subject to all other Exchange Rules that pertain to orders generally.
(1) Minimum Increments. Bids and offers on complex orders may be expressed in any decimal price
.01 A bid or offer made as part of a stock-option order (as defined in (a)(5)(i) above) or a SSF-option order (as defined in (a)(5)(ii) above) is made and accepted subject to the following conditions: (1) the order must disclose all legs of the order and must identify the security (which in the case of a single stock future requires sufficient identification to determine the market(s) on which the single stock future trades) and the price at which the non-option leg(s) of the order is to be filled; and (2) concurrent with the execution of the options leg of the order, the initiating member and each member that agrees to be a contra-party on the non-option leg(s) of the order must
A trade representing the execution of the options leg of a stock-option or SSF-option order may be cancelled at the request of any member that is a party to that trade only if market conditions in any of the non-Exchange market(s) prevent the execution of the non-option leg(s) at the price(s) agreed upon.
.02
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 Exchange proposes to revise the procedures for executing stock-option orders by: (1) Automating the transmission of the stock leg(s) of a stock-option combination order to a broker-dealer on behalf of members; and (2) allowing for the pricing of the options leg(s) of stock-option combination orders in penny increments.
Supplementary Material .01 to ISE Rule 722 currently describes a manual procedure by which a stock-option order may be executed on the Exchange. This manual procedure requires each party to a stock-option trade to take steps immediately to transmit the stock leg(s) of the order to a non-Exchange market for execution. The Exchange proposes to offer an automated process for the communication of stock-option orders by electronically transmitting the orders related to the stock leg(s) for execution on behalf of the parties to the trade. To participate in this automated process for stock-option orders, an ISE member must enter into a customer agreement with the designated broker-dealer. In addition, each member will be responsible for whatever fees and other charges the designated broker-dealer imposes for executing the trades. The Exchange will not receive any fees related to the stock portion of the stock-option trade. Members will be able to continue using the current manual procedure for execution of stock-option orders if they choose.
The electronic communication of the orders by the Exchange eliminates the necessity for each party to the trade to separately communicate orders to the broker-dealer for execution, thereby making the process more efficient. Once the orders are communicated to the broker-dealer for execution, the broker-dealer has complete responsibility for determining whether the orders may be executed in accordance with all of the rules applicable to execution of equity orders, including compliance with the applicable short-sale, trade-through and trade reporting rules. As with the current manual procedure, if the broker-dealer cannot execute the equity orders at the designated price, the stock-option combination order will not be executed on the Exchange.
Because the options leg(s) of a stock-option order must be executed in $.05 increments (for options trading below $3) and $.10 increments (for options trading at or above $3),
The Exchange believes that the proposed rule change is consistent with the Act in general, and Section 6(b)(5)
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange 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 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 should 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”)
NASD is proposing to amend Section 5 of Schedule A to the NASD By-Laws (“Section 5”) to clarify that two or more members that are under substantially the same ownership or control (commonly referred to as a “simultaneous filing group” or “SFG”) may eliminate certain duplicate fees and assessments and to remind members to provide NASD with prior notice in the format specified by NASD if they wish to establish eligibility for the reduced fees. Below is the text of the proposed rule change. Proposed new language is in
Assessments and fees pursuant to the provisions of Article VI of the By-Laws of NASD shall be determined on the following basis.
Sections 1 through 4. No change.
Two or more members under substantially the same ownership or control shall be required to pay
In its filing with the Commission, 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. NASD has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Section 5 addresses the elimination of certain duplicate assessments and fees for two or more members under substantially the same ownership or control. The proposed rule change will amend Section 5 to codify NASD's stated policies and practices with respect to the availability of these reduced fees to simultaneous filing groups. First, the proposed rule change will change the reference to a “registration renewal fee” to “system processing fee,” to conform the terminology to an amendment to Section 5 made in 1999.
NASD notes that this language will codify existing long-standing practice, which requires members to follow certain procedures to obtain the benefits of NASD's simultaneous filing group program and the reduced registration fees associated therewith, including establishing an simultaneous filing group, notifying NASD staff of the affiliated firms included in the simultaneous filing group, and requesting and completing an SFG Participation Agreement.
NASD believes that the proposed rule change is consistent with the provisions of Section 15A(b)(5) of the Act,
NASD does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Sections 19(b)(3)(A)(i) and (ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. 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”),
NASD is filing with the Commission a proposed rule change to delay, until February 1, 2004, the implementation date of amendments to Article VIII (District Committees and District Nominating Committees) of the By-Laws of NASD Regulation, Inc. that were established by SR-NASD-2003-55.
In its filing with the Commission, 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. NASD has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to notify the Commission and other interested parties of the delay in implementation of amendments to Article VIII of the By-Laws of NASD Regulation, Inc. (“Article VIII”) established by SR-NASD-2003-55 until February 1, 2004. On March 21, 2003, NASD filed a proposed rule change to streamline the nomination and election processes governing District Committees and District Nominating Committees, modernize communication procedures, and improve the consistency among the Committees across all districts. On June 11, 2003, the SEC published a notice of filing and immediate effectiveness of the proposed rule change.
In this rule filing, NASD is proposing to extend the implementation date of the amendments to February 1, 2004. As the amendments to Article VIII were not effective prior to the start of the 2004 election cycle, NASD is conducting these elections in accordance with the existing provisions of Article VIII. NASD believed that the 2004 election cycle would be completed by December 2003. However, a contested election in one of the Districts has resulted in a delay in the 2004 election cycle. NASD expects to have the 2004 District Committee and District Nominating Committee elections completed and certified by the end of January 2004 and, therefore, proposes to delay the implementation date of the amendments to Article VIII until February 1, 2004 in order to avoid any confusion among participants and to prevent any disruption in the election procedures that could be brought on by adopting amendments in the middle of the election cycle.
NASD believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
NASD does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
The proposed rule change has been filed by NASD as constituting a stated policy, practice, or interpretation with respect to the meaning, administration, or enforcement of an existing rule under Section 19(b)(3)(A)(i) of the Act
At any time within 60 days of this filing, the Commission may summarily abrogate this proposal if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the 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:
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
In accordance with a notice received from the Department of Homeland Security—Federal Emergency Management Agency, effective December 19, 2003, the above numbered declaration is hereby amended to include the municipalities of Aibonito and Naranjito as disaster areas due to damages caused by severe storms, flooding, mudslides and landslides beginning on November 10, 2003 and continuing through November 23, 2003.
In addition, applications for economic injury loans from small businesses located in the contiguous municipalities of Barranquitas, Cidra, Comerio, and Corozal may be filed until the specified date at the previously designated location. All other municipalities contiguous to the above named primary municipalities have been previously declared.
All other information remains the same,
This statement amends Part S of the Statement of the Organization, Functions and Delegations of Authority which covers the Social Security Administration (SSA). Chapter S2 covers the Deputy Commissioner, Operations. Notice is given that Subchapter S2R, the Office of Central Operations, is being amended to reflect the realignment of the Center for Management Support and the Center for Human Resources into one center;
Section S2R.10
C. The Immediate Office of the Associate Commissioner, Office of Central Operations (S2R).
4. The Assistant Associate Commissioner for Management Operations and Support (S2RC).
Delete:
b. The Center for Management Support (S2RC2).
Reletter:
“c” to “b”;
“d” to “c”;
“e” to “d”;
“f” to “e”.
Section S2R.20
C. The Immediate Office of the Associate Commissioner, OCO (S2R) provides internal operations and management support and assistance to the Associate Commissioner and all OCO components.
4. The Assistant Associate Commissioner for Management and Operations Support (S2RC) is responsible for the direction of six centers which perform systems, management, program, material resources, personnel management services, and security and integrity support functions for OCO.
Delete: “six” prior to the word “centers”.
Add: five
b. The Center for Management Support (S2RC2):
Delete: b in its entirety.
Reletter:
“c” to “b”;
“d” to “c”;
“e” to “d”;
“f” to “e”.
d. The Center for Human Resources (S2RC5): Add: 14. In the area of Labor Management and Employee Relations: Maintain responsibility for all aspects of the mid-term and impact and implementation bargaining process that pertain only to OCO; process grievances through all steps of the grievance procedure; in consultation with the Office of General Counsel, represent OCO managers at all stages of the arbitration process, including the preparation of position papers and briefs; and process all aspects of systems violations in accordance with guidance issued by the Office of Human Resources and the Deputy Commissioner for Operations.
Add: 15. Develops and conducts OCO-wide operational training and employee development activities. Analyzes and evaluates training and effectiveness. Ensures that required Agency-level, other Government agency, and private vendor training is provided.
Add: 16. Resource Planning and Management
In the Matter of the Amended Designations of the Kurdistan Freedom and Democracy Congress also known as the Freedom and Democracy Congress of Kurdistan, also known as KADEK, also known as the Kurdistan Workers' Party, also known as the PKK, also known as Partiya Karkeran Kurdistan, also known as the People's Defense Force, also known as Halu Mesru Savunma Kuvveti (HSK), also known as Kurdistan People's Congress (KHK), also known as People's Congress of Kurdistan, also known as KONGRA-GEL, as a Foreign Terrorist Organization pursuant to Section 219 of the Immigration and Nationality Act and pursuant to Section 1(b) of Executive Order 13224.
Based upon a review of the administrative record assembled in this matter, and in consultation with the Attorney General, the Secretary of the Treasury, and the Secretary of Homeland Security, the Deputy Secretary of State has concluded that there is a sufficient factual basis to find that the Kurdistan Workers' Party, also known as the Freedom and Democracy Congress of Kurdistan and other aliases, has changed its name to the Kurdistan People's Congress (KHK), also known as People's Congress of Kurdistan, and also known as KONGRA-GEL, and that the relevant circumstances described in Section 219(a)(1) of the Immigration and Nationality Act, as amended (the “INA”) (8 U.S.C. 1189(a)(1)), and in Section 1(b) of Executive Order 13224, as amended (“E.O. 13224”), still exist with respect to that organization.
Therefore, the Deputy Secretary of State hereby further amends the designation of that organization as a foreign terrorist organization, pursuant to Section 219(a)(4)(B) of the INA (8 U.S.C. 1189(a)(4)(B)), and further amends the 2001 designation of that organization pursuant to Section 1(b) of E.O. 13224, to include the following new names: Kurdistan People's Congress (KHK), People's Congress of Kurdistan, KONGRA-GEL.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously”, no prior notice need be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of criteria and application procedures for designation or redesignation, for the fiscal year 2004 MAP.
This notice announces the criteria, application procedures, and schedule to be applied by the Secretary of Transportation in designating or redesignating, and funding capital development annually for up to 15 current (joint-use) or former military airports seeking designation or redesignation to participate in the Military Airport Program (MAP).
The MAP allows the Secretary to designate current (joint-use) or former military airports to receive grants from the Airport Improvement Program (AIP). The Secretary is authorized to designate an airport (other than an airport designated before August 24, 1994) only if:
(1) The airport is a former military installation closed or realigned under the Title 10 U.S.C. § 2687 (announcement of closures of large Department of Defense installations after September 30, 1977), or under Section 201 or 2905 of the Defense Authorization Amendments and Base Closure and Realignment Acts; or
(2) the airport is a military installation with both military and civil aircraft operations.
The Secretary shall consider for designation only those current or former military airports, at least partly converted to civilian airports as part of the national air transportation system, that will reduce delays at airports with more than 20,000 hours of annual delays in commercial passenger aircraft takeoffs and landings, or will enhance airport and air traffic control system capacity in metropolitan areas or reduce current and projected flight delays (49 U.S.C. 47118(c)).
Airport sponsors should send applications for new designation and redesignation in the MAP to the FAA Regional Airports Division or Airports District Office that serves the airport. That office must receive applications on or before February 12, 2004.
Submit an original and two copies of Standard Form (SF) 424, “Application for Federal Assistance,” prescribed by the Office of Management and Budget Circular A-102, available at
Mr. Murdock (
The MAP provides capital development assistance to civil airport sponsors of designated current (joint-use) military airfields or former military airports that are included in the FAA's National Plan of Integrated Airport Systems (NPIAS). Airports designated to
A maximum of 15 airports per fiscal year (FY) may participate in the MAP at any time. There are 5 slots available for designation or redesignation in FY 2004. One of the 5 airports may be designated as a general aviation airport.
The maximum term is five fiscal years following designation. The FAA can designate airports for a period less than five years. The FAA will evaluate the conversion needs of the airport in its capital development plan to determine the appropriate length of designation.
Previously designated airports may apply for redesignation for an additional term not to exceed five years. Those airports must meet current eligibility requirements in 49 U.S.C. 47118 (a) at the beginning of each grant period and have MAP eligible projects. The FAA will evaluate applications for redesignation primarily in terms of warranted projects fundable only under the MAP as these candidates tend to have fewer conversion needs than new candidates. The FAA wants MAP airports to graduate to regular AIP participation.
In addition to eligible AIP projects, MAP can fund passenger terminal facilities, fuel farms, utility systems, surface automobile parking lots, hangars, and air cargo terminals up to 50,000 square feet. Designated or redesignated military airports can also receive not more than $10,000,000 for fiscal years 2004 and 2005 and $7,000,000 for each fiscal year after 2005 for projects to construct, improve, or repair terminal building facilities. Designated or redesignated military airports can also receive not more than $10,000,000 for fiscal years 2004 and 2005 and $7,000,000 for each fiscal year after 2005 for MAP eligible projects that include hangars, cargo facilities, fuel farms, automobile surface parking, and utility work.
In making designations of new candidate airports, the Secretary of Transportation may only designate an airport (other than an airport so designated before August 24, 1994) if it meets the following general requirements:
(I) (1) The airport is a former military installation closed or realigned under—
(A) Section 2687 of Title 10;
(B) Section 201 of the Defense Authorization Amendments and Base Closure and Realignment Act (BRAC) (10 U.S.C. 2687 note); or
(C) Section 2905 of the Defense Base Closure and Realignment Act of 1990 (10 U.S.C. 2687 note); or
(1) The airport is a military installation with both military and civil aircraft operations.
(II) The airport is classified as a commercial service or reliever airport in the NPIAS. One of the designated airports, if included in the NPIAS, may be a general aviation (GA) airport (public airport other than an air carrier airport, 14 CFR 152.3) that was a former military installation closed or realigned under BRAC, as amended, or 10 U.S.C. 2687. (See 49 U.S.C. 47118(g)). A general aviation airport must qualify under (1) above.
(III) In designating new candidate airports, the Secretary shall consider if a grant would:
(1) reduce delays at an airport with more than 20,000 hours of annual delays in commercial passenger aircraft takeoffs and landings; or
(2) Enhance airport and air traffic control system capacity in a metropolitan area or reduce current and projected flight delays.
The application for new designations will be evaluated in terms of how the proposed projects would contribute to congestion relief and/or how the airport would enhance air traffic or airport system capacity and provide adequate user services.
Recently realigned or closed military airports as well as active military airfields with new joint-use agreements have the greatest need of funding to convert to, or to incorporate, civil airport operations. Newly converted airports and new joint-use locations frequently have minimal capital development resources and will therefore receive priority consideration for designation and MAP funding. The FAA will evaluate the need for eligible projects based upon information in the candidate airport's five-year Airport Capital Improvement Plan (ACIP). These projects need to be related to development of that airport and/or the air traffic control system. It is the intent of the Secretary of Transportation to fund those airport projects which maximize the benefits to the capacity of the air traffic control and airport systems, and/or promote the reduction of airport congestion.
1. The FAA will evaluate candidate airports and/or the airports such candidate airports would relieve based on the following specific factors:
• Compatibility of airport roles and the ability of the airport to provide an adequate airport facility;
• The capability of the candidate airport and its airside and landside complex to serve aircraft that otherwise must use the relieved airport;
• Landside surface access;
• Airport operational capability, including peak hour and annual capacities of the candidate airport;
• Potential of other metropolitan area airports to relieve the congested airport;
• Ability to satisfy, relieve, or meet air cargo demand within the metropolitan area;
• Forecasted aircraft and passenger levels, type of commercial service anticipated,
• Type and capacity of aircraft projected to serve the airport and level of operations at the relieved airport and the candidate airport;
• The potential for the candidate airport to be served by aircraft or users, including the airlines, serving the congested airport;
• Ability to replace an existing commercial service or reliever airport serving the area; and
• Any other documentation to support the FAA designation of the candidate airport.
2. The FAA will evaluate the development needs that, if funded, would make the airport a viable civil airport that will enhance system capacity or reduce delays. Newly closed installations or airports with new joint-use agreements with existing military aviation facilities will be strongly considered for designation since they tend to have the greatest conversion needs.
Airport sponsors applying for designation or redesignation must complete and submit an SF 424, “Application for Federal Assistance,” and provide supporting documentation to the appropriate FAA regional or district office serving that airport.
Standard Form 424:
Sponsors can obtain this form at
(A)
(1) Closed or realigned under Section 201 of the Defense Authorization Amendments and Base Closure and Realignment Act, and/or Section 2905 of the Defense Base Closure and Realignment Act of 1990 (Installations Approved for Closure by the Defense Base Realignment and Closure Commissions), or
(2) Closed or realigned pursuant to 10 U.S.C. 2687 as excess property (bases announced for closure by Department of Defense (DOD) pursuant to this title after September 30, 1977 (this is the date of announcement for closure and not the date the property was deeded to the airport sponsor)), or
(3) A military installation with both military and civil aircraft operations. The airport receiving a general aviation designation may be joint-use but must qualify under (1) or (2) above.
(B)
Submit documents for (1) through (7) below:
(1) Documentation that the airport meets the definition of a “public airport” as defined in 49 U.S.C. § 47102(16).
(2) Documentation indicating the required environmental review for civil reuse or joint-use of the military airfield has been completed. This environmental review need not include review of the individual projects to be funded by the MAP. Rather, the documentation should reflect that the environmental review necessary to convey the property, enter into a long-term lease, or finalize a joint-use agreement has been completed. The military department conveying or leasing the property, or entering into a joint-use agreement, has the lead responsibility for this environmental review. The environmental review and approvals must indicate that the operator or owner of the airport has good title, satisfactory to the Secretary, or assures that good title will be acquired, to meet AIP requirements.
(3) For a former military airport, documentation that the eligible airport sponsor holds or will hold satisfactory title, a long-term lease in furtherance of conveyance of property for airport purposes, or a long-term interim lease for 25 years or longer, to the property on which the civil airport is being located. Documentation that an application for surplus or BRAC airport property has been accepted by the Federal Government is sufficient to indicate the eligible airport sponsor holds or will hold satisfactory title or a long-term lease.
(4) For a current military airport, documentation that the airport sponsor has an existing joint-use agreement with the military department having jurisdiction over the airport. This is necessary so the FAA can legally issue grants to the sponsor. In here and (3) directly above, the airport must possess the necessary property rights in order to accept a grant for its proposed projects during FY 2004.
(5) Documentation that the airport is classified as a “commercial service airport” or a “reliever airport” as defined in 49 U.S.C. 47102(7) and 47102(18), unless the airport is applying for the general aviation slot.
(6) Documentation that the airport owner is an eligible airport “sponsor” as defined in 49 U.S.C. 47102(19).
(7) Documentation that the airport has an approved airport layout plan (ALP) and a five-year airport capital improvement plan (ACIP) indicating all eligible grant projects proposed to be funded either from the MAP or other portions of the AIP.
Submit information on the items below to assist in our evaluation:
(1) Information identifying the existing and potential levels of visual or instrument operations and aeronautical activity at the current or former military airport and, if applicable, the relieved airport. Also, if applicable, information on how the airport contributes to air traffic system or airport system capacity. If served by commercial air carriers, the revenue passenger and cargo levels should be provided.
(2) A description of the airport's projected civil role and development needs for transitioning from use as a military airfield to a civil airport. Include how development projects would serve to reduce delays at an airport with more than 20,000 hours of annual delays in commercial passenger aircraft takeoffs and landings; or enhance capacity in a metropolitan area or reduce current and projected flight delays.
(3) A description of the existing airspace capacity. Describe how anticipated new operations would affect the surrounding airspace and air traffic flow patterns in the metropolitan area in or near the airport. Include a discussion of the level to which operations at this airport create airspace conflicts that may cause congestion or whether air traffic works into the flow of other air traffic in the area.
(4) A description of the airport's five-year ACIP, including a discussion of major projects, their priorities, projected schedule for project accomplishment, and estimated costs. The ACIP must specifically identify the safety, capacity, and conversion related projects, associated costs, and projected five-year schedule of project construction, including those requested for consideration for MAP funding.
(5) A description of those projects that are consistent with the role of the airport and effectively contribute to the joint-use or conversion of the airfield to a civil airport. The projects can be related to various improvement categories depending on what is needed to convert from military to civil airport use, to meet required civil airport standards, and/or to provide capacity to the airport and/or airport system. The projects selected (
• Modification of airport or military airfield for safety purposes, including airport pavement modifications (
• Construction of facilities or support facilities such as passenger terminal gates, aprons for passenger terminals, taxiways to new terminal facilities, aircraft parking, and cargo facilities to accommodate civil use.
• Modification of airport or military utilities (electrical distribution systems, communications lines, water, sewer, storm drainage) to meet civil standards. Also, modifications that allow utilities on the civil airport to operate independently, where other portions of the base are conveyed to entities other
• Purchase, rehabilitation, or modification of airport and airport support facilities and equipment, including snow removal, aircraft rescue, fire fighting buildings and equipment, airport security, lighting vaults, and reconfiguration or relocation of eligible buildings for more efficient civil airport operations.
• Modification of airport or military airfield fuel systems and fuel farms to accommodate civil aviation use.
• Acquisition of additional land for runway protection zones, other approach protection, or airport development.
• Cargo facility requirements.
• Modifications which will permit the airfield to accommodate general aviation users.
• Construction of surface parking areas and access roads to accommodate automobiles in the airport terminal and air cargo areas and provide an adequate level of access to the airport.
• Construction or relocation of access roads to provide efficient and convenient movement of vehicular traffic to, on, and from the airport, including access to passenger, air cargo, fixed base operations, and aircraft maintenance areas.
• Modification or construction of facilities such as passenger terminals, surface automobile parking lots, hangars, air cargo terminal buildings, and access roads to cargo facilities to accommodate civil use.
(6) An evaluation of the ability of surface transportation facilities (road, rail, high-speed rail, maritime) to provide intermodal connections.
(7) A description of the type and level of aviation and community interest in the civil use of a current or former military airport.
(8) One copy of the FAA-approved ALP for each copy of the application. The ALP or supporting information should clearly show capacity and conversion related projects. Other information such as project costs, schedule, project justification, other maps and drawings showing the project locations, and any other supporting documentation that would make the application easier to understand should also be included. You may also provide photos, which would further describe the airport, projects, and otherwise clarify certain aspects of this application. These maps and ALP's should be cross-referenced with the project costs and project descriptions.
Airports applying for redesignation to the Military Airport Program must submit the same information required by new candidate airports applying for a new designation. On the SF 424, Application for Federal Assistance, prescribed by the Office of Management and Budget Circular A-102, airports must indicate their application is for redesignation to the MAP. In addition to the above information, they must explain:
(1) Why a redesignation and additional MAP eligible project funding is needed to accomplish the conversion to meet the civil role of the airport and the preferred time period for redesignation not to exceed five years;
(2) Why funding of eligible work under other categories of AIP or other sources of funding would not accomplish the development needs of the airport; and
(3) Why, based on the previously funded MAP projects, the projects and/or funding level were insufficient to accomplish the airport conversion needs and development goals.
This notice is issued pursuant to Title 49 U.S.C. 47118.
Federal Aviation Administration (FAA), DOT.
Notice to intend to rule on application.
The FAA proposes to rule and invites public comment on the application to impose a PFC at Westchester County Airport under the provisions of the Aviation Safety and Capacity Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Public Law 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR part 158).
Comments must be received on or before February 12, 2004.
Comments on this Application may be mailed or delivered in triplicate to the FAA at the following address: Mr. Dan Vornea, Project Manager, New York District Office, 600 Old Country Road, Suite 446, Garden City, NY 11530.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Robert J. Bracchitta, Assistant Commissioner, Department of Transportation, Westchester County at the following address: Westchester County Airport, Building #11, 36 Loop Road, White Plains, New York 10604.
Air carriers and foreign air carriers may submit copies of their written comments previously provided to Westchester County Airport under section 158.23 of part 158.
Dan Vornea, Project Manager, New York Airports District Office, 600 Old Country Road, Suite 446, Garden City, NY 11530, Telephone No. (516) 227-3812. The application may be reviewed in person at this same location.
The FAA proposes to rule and invites public comment on the application to impose a PFC at Westchester County Airport under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Public Law 101-508) and part 158 of the Federal Aviation Regulations (14 CFR part 158).
On January 5, 2004 the FAA determined that the application to impose a PFC submitted by the Westchester County was substantially completed within the requirements of section 158.25 of part 158. The FAA will approve or disapprove the application, in whole or in part, no later than May 1, 2004.
The following is a brief overview of the application:
Application Number: 04-02-C-00-HPN.
Level of Proposed PFC: $4.50.
Proposed Charge Effective Date: May 1, 2004.
Proposed Charge Expiration Date: October 1, 2014.
Total Estimated PFC Revenue: $20,200,000.
Brief Description of Proposed Project: Design and Construction of a New Deicing Facilities.
Class or classes of air carriers which the public agency has requested not to be required to collect PFS's are: Non-Scheduled/On Demand Air Carriers filing FAA Form 1800-31.
Any person may inspect the Application in person at the FAA office
In addition, any person may, upon request, inspect the application notice and other documents germane to the application in person at the Westchester County Airport.
Federal Highway Administration (FHWA), DOT.
Notice of intent to prepare an environmental impact statement.
The FHWA is issuing this notice to advise the public that an Environmental Impact Statement (EIS) will be prepared for a proposed highway project in Ada County, Idaho.
Russell Jorgenson, Idaho Division Field Operations Engineer, Federal Highway Administration, 3050 Lakeharbor Lane, Suite 126, Boise, Idaho 83703, telephone: (208) 334-9180, Ext. 122; Greg Vitley, Senior Environmental Planner, Idaho Transportation Department, District 3, P.O. Box 8028, Boise, ID 83707, telephone (208) 334-8300; or Sally Goodell, Three Cities River Crossing Coordinator, Ada County Highway District, 318 East 37th Street, Garden City, Idaho 83714, telephone (208) 387-6100.
The Federal Highway Administration, in cooperation with the Ada County Highway District and the Idaho Transportation Department, will prepare an EIS that identifies an alignment for a transportation corridor that will connect State Highway 44/55 on the north with US 20/26 on the south. The proposed highway alternatives vary from approximately 1.5 to 3.0 miles in length and will provide 4 to 6 travel lanes. This alignment includes a new bridge across the Boise River. The study area is located in the northwestern part of the Boise Metropolitan Area, and borders or passes through portions of the cities of Boise, Eagle and Garden City as well as Ada County.
This improvement is considered necessary to relieve existing and projected traffic congestion in the study area. Alternatives under consideration include, (1) taking no action, (2) road alignment alternatives for connecting State Highway 44/55 and US Highway 20/26 and, (3) alternative bridge types for the crossing of the Boise River. The termini for the project are State Highway 44/55 on the north and US Highway 20/26 to the south.
Letters describing the proposed action and soliciting comments will be sent to the appropriate Federal, State and local agencies and citizens who have previously expressed interest in this proposed project. Scoping will begin with the publication of the Notice of Intent. As part of the scoping process, public information meetings will be held in addition to public hearings. Public notice will be given of the time and place of any public information meetings and public hearings. The draft EIS will be made available in electronic format for public and agency review and comment and hard copies will be available in public places to be determined and published. Accommodations for persons with special needs for reviewing the EIS will be available by contacting one of the contact sources listed above.
To ensure that the full range of issues related to this proposed action are addressed and all significant issues are identified, comments and suggestions are invited from all interested parties.
Comments or questions concerning this proposed action and the EIS should be directed to FHWA or the Ada County Highway District at the addresses provided above.
23 U.S.C. 315; 23 CFR 771.123; 49 CFR 1.48.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of denial of application for exemptions.
The FMCSA denies Mayflower Transit LLC and United Van Lines' LLC application for exemptions from certain Federal controlled substance and alcohol testing requirements. The applicants requested exemptions that would allow them to impose controlled substance and alcohol testing on their non-CDL (commercial drivers license) drivers using the same standards, forms and requirements, and in the same random testing pool, as their CDL drivers. The FMCSA denies the exemptions because Mayflower Transit LLC and United Van Lines LLC did not explain how they would achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained by complying with the random controlled substances and alcohol testing requirements.
January 13, 2004.
Ms. Kaye Kirby, Office of Bus Truck Standards and Operations, Physical Qualifications Division, (202) 366-3109, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:15 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.
Public Participation: The Docket Management System (DMS) is available 24 hours each day, 365 days each year. You can get electronic submission and retrieval help guidelines under the “help” section at:
On May 15, 2003, 68, FR, 26374, the FMCSA published a Notice of its receipt of an application from Mayflower and United Van Lines that requested exemptions that would allow them to impose controlled substance and alcohol testing on their non-CDL drivers using the same standards, forms and requirements, and in the same random testing pool as their CDL drivers. Mayflower and United Van Lines noted
Sections 31315 and 31136 of title 49 of the United States Code provide the authority to grant exemptions from certain portions of the Federal Motor Carrier Safety Regulations (FMCSRs). Exemptions provide time-limited regulatory relief from one or more FMCSRs given to a person or class of persons subject to the regulations, or who intend to engage in an activity that would make them subject to the regulations. Exemptions provide the person or class of persons with relief from the regulations for up to two years and may be renewed. These sections also require the agency to ensure that the terms and conditions for the exemptions would achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained by complying with the regulations when evaluating applications for exemptions.
The FMCSA received eight comments to the notice announcing the FMCSA's receipt of the application from Mayflower and United Van Lines. The Drug and Alcohol Testing Industry Association (DATIA), Lawrence C. Hartung, Ronald K Edwards, Michael Silverman, Renee Lane, and Thomas E. Swayne were opposed to granting exemptions to Mayflower and United Van Lines. These commenters believe the management of two pools within the same company, one regulated and one not regulated, is a relatively common task, which can be managed easily by someone within the company, by Third Party Administrators (TPA), or Medical Review Officers (MROs). This is currently done on a daily basis with little additional administrative work, and the overall effort to manage the two pools is negligible. In addition, commenters noted that the overall size of these two employers could potentially skew statistical data for the entire industry if they were allowed to include non-CDL employees in with CDL employees. It was noted that for the safety of the general public, the DOT has set standards requiring all CDL drivers to be tested at a certain rate each year. Adding all the non-CDL drivers and employees to the same random pool would prevent them from achieving the required rate of testing. DATIA stated, “to allow employers to include non-covered employees in the same pool as FMCSA covered employees would have far reaching negative effects on the FMCSA drug and alcohol testing program.”
Another commenter, Joe Kroening, appeared to be in favor of granting the request and noted that he fully supported the testing of all drivers and helpers in the industry whether or not they hold CDLs. The remaining commenter did not express opposition or support for granting Mayflower and United Van Lines an exemption.
The FMCSA has carefully reviewed the Mayflower and United Van Lines application for exemptions from certain Federal controlled substance and alcohol testing requirements. The agency agrees with certain commenters that the administrative burden is not overwhelming, and the management of two pools within the same company is a relatively common task managed easily either within the company, or by TPAs and MROs. Federal controlled substances and alcohol testing requirements (49 CFR 382.105, 49 CFR 382.305(I)(1), and 49 CFR 40.13(a), (b)(c) and (d)) are designed to keep testing standards high in the interest of public safety. Mayflower and United Van Lines have not demonstrated how their proposal would achieve a level of safety that is equivalent to, or greater than, the levels of safety that would be obtained by complying with the controlled substances and alcohol testing requirements. Consequently, the FMCSA is denying the Mayflower and United Van Lines request for exemptions from the Federal requirements for controlled substance and alcohol testing.
In accordance with Section 21, Part 238 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) received a request for special approval of an alternate standard of compliance for certain requirements of railroad safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.
The National Railroad Passenger Corporation (Amtrak) seeks approval for use of an alternate standard to comply with section 311 of the
Amtrak states that although Talgo brake equipment can receive the single car test utilizing the APTA standard, the proposed alternate standard would allow a semi-permanently coupled train set to remain coupled during testing. Amtrak indicates that the proposed alternate procedure on shorter length cars combined with reduced brake pipe volume would produce air flow rates not compatible with the APTA standard. During the brake pipe leakage test, the APTA standard allows for a 5-PSI drop in pressure for one minute in a single car, while the alternate Talgo standard allows only a 4.3-PSI drop in 30 minutes for the entire train set (normally 12 to 14 cars). In the service stability test, the APTA standard allows the brake cylinder pressure to increase by three PSI in one minute. In the alternate Talgo brake test procedure, an increase of 1.5 PSI occurs during the same time frame. The control valve leakage test in the APTA standard
Amtrak has supplied a copy of the alternate Talgo standard, a statement affirming that Amtrak has served a copy of the petition on designated representatives of its employees, and a list of the names and addresses of the persons served. These documents are available in the docket for this proceeding.
You may participate in this proceeding by submitting written views, data, or comments. Include the basis upon which you are supplying the information or comment and submit a concise statement of your particular interest in the proceeding. FRA does not anticipate scheduling a public hearing in connection with this proceeding because the facts do not appear to warrant a hearing. However, if you desire an opportunity to present an oral comment, please notify FRA, in writing, before the end of the comment period and specify the basis for your request.
Identify all of your communications with the appropriate docket number (FRA-2003-16666) and submit them to the Docket Clerk, DOT Docket Management Facility, Room PL-401 (Plaza Level), 400 7th Street, SW., Washington, DC 20590. Communications received within 30 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. You may examine all written communications concerning this proceeding during regular business hours (9 a.m.-5 p.m.) at the above facility. You also may view all documents in the public docket via the Internet by visiting the docket facility's Web site at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
Research and Special Programs Administration, DOT.
Request for OMB approval and public comments.
As required by the Paperwork Reduction Act of 1995, the Research and Special Programs Administration (RSPA) is publishing this notice seeking public comments on a proposed renewal of an information collection for
Comments on this notice must be received no later than March 15, 2004 to be assured of consideration.
You must identify the docket number RSPA-98-4957; Notice 04-01 at the beginning of your comments. Comments can be mailed to the U.S. Department of Transportation, Dockets Facility, Plaza 401, 400 Seventh St., SW., Washington, DC 20590. Comments can also be sent by e-mail to
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,
Marvin Fell, Office of Pipeline Safety, Research and Special Programs Administration, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20950, (202) 366-6205 or by electronic mail at
Copies of this information collection can be reviewed at the Dockets Facility, Plaza 401, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590 from 9 a.m. to 5 p.m. Monday through Friday except Federal holidays. They also can be viewed via the Internet at
Comments are invited on: (a) The need for the proposed collection of information 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 proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques. Send written comments in duplicate to Dockets Facility, Plaza 401, U.S. Department of Transportation, 400 Seventh St., SW., Washington, DC 20590. Please reference the docket number of this notice (RSPA-98-4957; Notice 04-01) when submitting your comments. Comments can also be sent electronically to
The Burlington Northern and Santa Fe Railway Company (BNSF) has agreed to grant temporary overhead trackage rights to Union Pacific Railroad Company (UP) over BNSF's rail line between BNSF milepost 0.0 at Klamath Falls, OR, and BNSF milepost 203.0 at Keddie, CA, a distance of approximately 203 miles.
The transaction was scheduled to be consummated on January 11, 2004, and the authorization is scheduled to expire on or about March 1, 2004. The purpose of the temporary trackage rights is to facilitate maintenance work on UP lines.
As a condition to this exemption, any employees affected by the temporary trackage rights will be protected by the conditions imposed in
This notice is filed under 49 CFR 1180.2(d)(8).
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34452, 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 William G. Barr, 1416 Dodge Street, Room 830, Omaha, NE. 68179.
Board decisions and notices are available on the Board's Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Notice is hereby given, pursuant to 5 U.S.C. App. 2, § 10(a)(2), that a meeting will be held at the Hay-Adams Hotel, 16th and Pennsylvania Avenue, NW., Washington, DC, on February 3, 2004 at 11 a.m. of the following debt management advisory committee: Treasury Borrowing Advisory Committee of The Bond Market Association (“Committee”).
The agenda for the meeting provides for a charge by the Secretary of the Treasury or his designate that the Committee discuss particular issues, and a working session. Following the working session, the Committee will present a written report of its recommendations. The meeting will be closed to the public, pursuant to 5 U.S.C. App. 2, § 10(d) and Pub. L. 103-202, § 202(c)(1)(B) (31 U.S.C. 3121 note).
This notice shall constitute my determination, pursuant to the authority placed in heads of agencies by 5 U.S.C. App. 2, § 10(d) and vested in me by Treasury Department Order No. 101-05, that the meeting will consist of discussions and debates of the issues presented to the Committee by the Secretary of the Treasury and the making of recommendations of the Committee to the Secretary, pursuant to Pub. L. 103-202, § 202(c)(1)(B). Thus, this information is exempt from disclosure under that provision and 5 U.S.C. 552b(c)(3)(B). In addition, the meeting is concerned with information that is exempt from disclosure under 5 U.S.C. 552b(c)(9)(A). The public interest requires that such meetings be closed to the public because the Treasury Department requires frank and full advice form representatives of the financial community prior to making its final decision on major financing operations. Historically, this advice has been offered by debt management advisory committees established by the several major segments of the financial community. When so utilized, such a committee is recognized to be an advisory committee under 5 U.S.C. App. 2, § 3.
Although the Treasury's final announcement of financing plans may not reflect the recommendations provided in reports of the Committee, premature disclosure of the Committee's deliberations and reports would be likely to lead to significant financial speculation in the securities market. Thus, this meeting falls within the exemption covered by 5 U.S.C. 552b(c)(9)(A).
Treasury staff will provide a technical briefing to the press on the day before the Committee meeting, following the release of a statement of economic conditions, financing estimates and technical charts. This briefing will give the press an opportunity to ask questions about financing projections and technical charts. The day after the Committee meeting, Treasury will release the minutes of the meeting, any charts that were discussed at the meeting, and the Committee's report to the Secretary.
The Office of Debt Management is responsible for maintaining records of debt management advisory committee meetings and for providing annual reports setting forth a summary of Committee activities and such other matters as may be informative to the public consistent with the policy of 5 U.S.C. 552(b). The Designated Federal Officer or other responsible agency official who may be contacted for additional information is Tim Bitsberger, Deputy Assistant Secretary, Federal Finance, at (202) 622-2245.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and
Written comments should be received on or before March 15, 2004 to be assured of consideration.
Direct all written comments to Robert M. Coar, Internal Revenue Service, room 5244, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the forms and instructions should be directed to Carol Savage at Internal Revenue Service, room 6407, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622-3945, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 1041 and related Schedules D, J, and K-1, U.S. Income Tax Return for Estates and Trusts.
Written comments should be received on or before March 15, 2004 to be assured of consideration.
Direct all written comments to Robert M. Coar, Internal Revenue Service, room 5244, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Carol Savage at Internal Revenue Service, room 6407, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622-3945, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 990, Return of Organization Exempt From Income Tax Under Section 501(c), 527, or 4947(a)(1) of the Internal Revenue Code (except black lung benefit trust or private foundation), Schedule A, Organization Exempt Under Section 501(c)(3) (Except Private Foundation), and Section 501(e), 501(f), 501(k), 501(n), or Section 4947(a)(1) Nonexempt Charitable Trust, and Schedule B, Schedule of Contributors.
Written comments should be received on or before March 15, 2004, to be assured of consideration.
Direct all written comments to Robert M. Coar, Internal Revenue Service, room 5244, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the forms and instructions should be directed to Carol Savage at Internal Revenue Service, room 6407, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622-3945, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the Area 7 committee of the Taxpayer Advocacy Panel will be conducted (via teleconference). The Taxpayer Advocacy Panel (TAP) is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service. The TAP will use citizen input to make recommendations to the Internal Revenue Service.
The meeting will be held Tuesday, February 3, 2004.
Mary Peterson O'Brien at 1-888-912-1227, or (206) 220-6096.
Notice is hereby given pursuant to Section
The agenda will include the following: Various IRS issues.
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the Small Business/Self Employed—Payroll Committee of the Taxpayer Advocacy Panel will be conducted (via teleconference). The TAP will be discussing issues pertaining to increasing compliance and lessening the burden for Small Business/Self Employed individuals. Recommendations for IRS systemic changes will be developed.
The meeting will be held Thursday, February 5, 2004.
Mary O'Brien at 1-888-912-1227, or (206) 220-6096.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Small Business/Self Employed—Payroll Committee of the Taxpayer Advocacy Panel will be held Thursday, February 5, 2004 from 3:00pm EDT to 4:30pm EDT via a telephone conference call. If you would like to have the TAP consider a written statement, please call 1-888-912-1227 or (206) 220-6096, or write to Mary O'Brien, TAP Office, 915 2nd Avenue, MS W-406, Seattle, WA 98174. Due to limited conference lines, notification of intent to participate in the telephone conference call meeting must be made with Mary O'Brien. Ms. O'Brien can be reached at 1-888-912-1227 or (206) 220-6096.
The agenda will include the following: Various IRS issues.
Office of Personnel Management.
Interim rule with request for comments.
The Office of Personnel Management is issuing interim regulations to establish a new pay-for-performance system for the Senior Executive Service (SES). The new SES pay system replaces the current six-level system with an open-range “payband” and allows a higher annual maximum rate of basic pay. These regulations set forth the requirements for converting SES members to the new pay system and adjusting SES rates of basic pay.
Send or deliver comments to Donald J. Winstead, Deputy Associate Director for Pay and Performance Policy, Office of Personnel Management, Room 7H31, 1900 E Street, NW., Washington, DC 20415-8200; by FAX at (202) 606-0824; or by e-mail at
For information, please contact Jo Ann Perrini by telephone at (202) 606-2858; by FAX at (202) 606-0824; or by email at pay-performance-policy@opm.gov.
Section 1125 of the “National Defense Authorization Act for Fiscal Year 2004” (Public Law 108-136, November 24, 2003) (the “Act”) amends 5 U.S.C. 5382 to replace the current six-level pay system for the Senior Executive Service (SES) with a single, open-range “payband” that has only its minimum and maximum rates of basic pay fixed by statute. The minimum rate of basic pay in the SES rate range may not be less than the minimum rate of basic pay (excluding locality pay) payable under 5 U.S.C. 5376 for senior-level positions ($103,700 in 2004), and the maximum rate of basic pay in the SES rate range may not exceed the rate for level III of the Executive Schedule ($144,600 in 2004). The new section 5382 also allows the maximum rate of basic pay to be set at level III of the Executive Schedule for a position in a system equivalent to the SES as determined by the President's Pay Agent (
The new section 5382 will allow an agency to establish a higher maximum rate of basic pay in the SES rate range up to the rate for level II of the Executive Schedule ($157,000 in 2004) if the agency obtains the certification specified in 5 U.S.C. 5307(d). In addition, agencies that obtain such certification will be allowed to apply to their SES members a higher aggregate limitation on pay under 5 U.S.C. 5307(d) that is equivalent to the total annual compensation payable to the Vice President ($201,600 in 2004). Section 1322 of the Homeland Security Act of 2002 (Public Law 107-296, November 25, 2002) added a new paragraph (d) to 5 U.S.C. 5307 to allow those agencies that are granted such certification to apply a higher aggregate limitation on pay equivalent to the total compensation payable to the Vice President. Under 5 U.S.C. 5307(d)(3)(A), the regulations prescribing the substantive and procedural requirements that an agency must meet to receive such certification for these purposes must be issued jointly by OPM and OMB. Consequently, those regulations will be promulgated separately. Those regulations also will address the requirements for setting a senior executive's rate of basic pay up to the rate for level II of the Executive Schedule.
The new section 5382 provides that, subject to regulations prescribed by OPM, there shall be established a range of rates of basic pay for the Senior Executive Service, and each senior executive shall be paid at one of the rates within the range, based on individual performance, contribution to the agency's performance, or both, as determined under a rigorous performance management system. In promulgating these regulations, OPM interprets this provision as permitting agencies to consider any unique skills, qualifications, or competencies that the individual possesses, and their significance to the agency's mission, as well as the individual's current responsibilities.
OPM has added a new § 534.406 to establish the structure of the new SES pay system, as well as the rules for conversion to the new pay system. In addition, new § 534.406 provides criteria for providing a pay adjustment to eligible senior executives on or after the first day of the first applicable pay period beginning on or after January 1, 2004. In these regulations, we refer to SES members as “senior executives.”
As a general matter, senior executives paid above the minimum rate will no longer receive an automatic annual across-the-board pay adjustment. The minimum rate of basic pay in the SES rate range will increase consistent with any increase in the minimum rate of basic pay for senior-level positions under 5 U.S.C. 5376 and the maximum rate of basic pay in the SES rate range will increase with any increase in the rate for level III of the Executive Schedule.
Under the new SES pay system, individual SES members will no longer receive locality-based comparability payments. Section 5 U.S.C. 5304(h) has been amended to remove the SES pay system, as well as the Federal Bureau of Investigation (FBI) and Drug Enforcement Administration (DEA) SES pay system from the list of positions for which locality-based comparability payments may be extended. In addition, revised 5 U.S.C. 5304(h) prohibits other positions under a system equivalent to the SES pay system, as determined by the President's Pay Agent, from receiving locality-based comparability payments. We have made conforming amendments in 5 CFR part 531 to reflect the changes made by 5 U.S.C. 5304(h).
The new § 534.406(c) authorizes agencies to increase a senior executive's converted rate of basic pay on the first day of the first applicable pay period beginning on or after January 1, 2004, or on any date thereafter. Prior to obtaining certification under 5 U.S.C. 5307(d), such increases may be made only up to the new rate for level III of the Executive Schedule, and only upon a determination that the senior executive's performance and/or contributions so warrant and that the senior executive is otherwise eligible for such a pay adjustment (
In assessing an individual's performance and/or contribution to the agency's performance, the agency may consider such things as unique skills, qualifications, or competencies that the individual possesses and their significance to the agency's mission, as well as the individual's current responsibilities. Any such adjustment will be considered a pay adjustment for the purpose of applying § 534.401(c)(1) and will be reviewed for the purpose of granting certification under 5 U.S.C. 5307(d). If there is an additional increase in the rate for level III of the Executive Schedule in 2004, and if that increase becomes effective as of the first day of the first applicable pay period beginning on or after January 1, 2004, an agency may review the previous determination to increase the pay of a senior executive to determine whether, and to what extent, an additional pay increase may be warranted based on the same criteria used for the previous determination to increase pay. If the agency determines that an additional pay increase is warranted, that increase must be made effective as of the effective date of the previous increase.
In addition, new § 534.401(c)(2) allows an agency to request an exception from the Director of OPM to the rule that limits an agency's authority to adjust a senior executive's rate of basic pay more than once during a 12-month period.
Section 1321 of the Homeland Security Act repealed the SES recertification requirements in 5 U.S.C. 3393a. As a result, OPM's regulations in § 317.504 are no longer needed and have been removed. In addition, we have made changes in 5 CFR parts 317 and 352 to remove references to the former six levels of SES pay.
I certify that these regulations will not have a significant economic impact on a substantial number of small entities, because they will apply to only Federal agencies and employees.
Pursuant to section 553(b)(3)(B) of title 5 of the United States Code, I find that good cause exists for waiving the general notice of proposed rulemaking. Also, pursuant to 5 U.S.C. 553(d)(3), I find that good cause exists for making this rule effective in less than 30 days. These regulations implement Public Law 108-136, which became effective on November 24, 2003. The waiver of the requirements for proposed rulemaking and a delay in the effective date is necessary to ensure timely implementation of the law as intended by Congress.
This rule has been reviewed by the Office of Management and Budget in accordance with E.O. 12866.
Decorations, Medals, Awards, Government employees, Law enforcement officers, Reporting and recordkeeping requirements, Wages, Hospitals, and Students.
Office of Personnel Management.
5 U.S.C. 3392, 3393, 3395, 3397,3592, 3593, 3595, 3596, 8414, and 8421.
(a) * * *
(2)
(b) * * *
(3)
(d) * * *
(2)
5 U.S.C. 3101 note, 3301, 3131
5 U.S.C. 5115, 5307, and 5338; sec. 4 of Pub. L. 103-89, 107 Stat. 981; and E.O. 12748, 56 FR 4521, 3 CFR, 1991 Comp., p. 316; Subpart B also issued under 5 U.S.C. 5303(g), 5333, 5334(a), and 7701(b)(2); Subpart C also issued under 5 U.S.C. 5304, 5305, and 5553; sections 302 and 404 of Federal Employees Pay Comparability Act of 1990 (FEPCA), Pub. L. 101-509, 104 Stat. 1462 and 1466; and section 3(7) of Pub. L. 102-378, 106 Stat. 1356; Subpart D also issued under 5 U.S.C. 5335(g) and 7701(b)(2); Subpart E also issued under 5 U.S.C. 5336; Subpart F also issued under 5 U.S.C. 5304, 5305(g)(1), and 5553; and E.O. 12883, 58 FR 63281, 3 CFR, 1993 Comp., p. 682 and E.O. 1306, 63 FR 68151, 3 CFR, 1998 Comp., p. 224; Subpart G also issued under 5 U.S.C. 5304, 5305, and 5553; section 302 of the FEPCA, Pub. L. 101-509, 104 Stat. 1462; and E.O. 12786, 56 FR 67453, 3 CFR, 1991 Comp., p. 376.
(c) The special law enforcement adjusted rate of pay for an employee in a position described in 5 U.S.C. 5304(h)(1)(A)-(C), in a senior executive position covered under 5 U.S.C. 3132, or in a senior executive position covered under 5 U.S.C. 3151 may not exceed the rate for level III of the Executive Schedule.
(1) An employee in a position to which 5 U.S.C. chapter 53, subchapter III, applies and whose official duty station is located in a locality pay area within the continental United States, including a GM employee (as defined in § 531.202); and
(2) An employee in a category of positions described in 5 U.S.C. 5304(h)(1)(A)-(D) for which the President (or designee) has authorized locality-based comparability payments under 5 U.S.C. 5304(h)(2) and whose official duty station is located in a locality pay area.
(4) For an employee in a category of positions described in 5 U.S.C. 5304(h)(1)(A)-(D) for which the President (or designee) has authorized locality-based comparability payments under 5 U.S.C. 5304(h)(2), the rate of basic pay fixed by law or administrative action, exclusive of any locality-based adjustments (including adjustments equivalent to local special rate adjustments under 5 U.S.C. 5305) or other additional pay of any kind.
(c)(1) Locality rates of pay approved by the President (or designee) for employees in a category of positions described in 5 U.S.C. 5304(h)(1)(A)-(C) may not exceed the rate for level III of the Executive Schedule.
(2) Locality rates of pay approved by the President (or designee) for employees in a category of positions described in 5 U.S.C. 5304(h)(1)(D) may not exceed—
5 U.S.C. 1104, 3161(d), 5307, 5351, 5352, 5353, 5376, 5382, 5383, 5384, 5385, 5541, 5550a, and sec. 1125 of the “National Defense Authorization Act for FY 2004,” Pub. L. 108-136.
The added and revised text reads as follows:
(a)
(c)
(i) The following pay actions are considered pay adjustments for this purpose:
(A) The setting of an individual's rate of basic pay upon initial appointment to the SES;
(B) The change from one SES rate of basic pay to another while employed in the SES;
(C) The assignment of an SES rate of basic pay upon reappointment to the SES following a break in SES service if the new SES rate of basic pay is different from the senior executive's former rate or if the break in service exceeds 12 months;
(D) An adjustment in pay granted in 2004 prior to any certification pursuant to 5 U.S.C. 5307(d), as provided in § 534.406(c)(i); and
(E) A determination by an authorized agency official to make a zero adjustment in pay or a reduction in pay for a senior executive, except as provided in paragraph (c)(1)(ii)(B) of this section.
(ii) The following pay actions are not considered pay adjustments for this purpose:
(A) Conversion of senior executives to the new SES pay system under § 534.406(b) and the conversion of other employees to equivalent senior executive positions; and
(B) A zero adjustment in pay during the 12-month period preceding the first day of the first applicable pay period beginning on or after January 1, 2004, caused by the former limitation on basic pay plus locality-based comparability payments under 5 U.S.C. 5304(g)(2) for a senior executive who was granted an increase in his or her rate of basic pay that did not result in an actual increase in pay.
(2) An authorized agency official may request an exception from the Director of OPM to the prohibition in paragraph (c)(1) of this section on adjusting a senior executive's rate of basic pay not more than once in any 12-month period.
(3) An authorized agency official may increase or reduce the rate of basic pay for a senior executive, consistent with the SES performance management requirements set forth in 5 CFR part 430, subpart C. Restrictions on reducing the rate of basic pay of a career senior executive are found in paragraph (f) of this section and in § 534.406(b)(2).
(a) * * *
(2) * * *
(i) A former SES career appointee who elected to retain award eligibility under 5 CFR part 317, subpart H. If the salary of the individual is higher than the maximum rate of basic pay for the SES rate range, the maximum rate of the SES rate range is used for crediting the agency award pool under paragraph (b) of this section and the amount the individual may receive under paragraph (c) of this section.
(a)
(b)
(1) On the first day of the first applicable pay period beginning on or after January 1, 2004, agencies must convert an existing SES rate of pay for a senior executive to an SES rate of basic pay that is equal to the employee's rate of basic pay, plus any applicable locality-based comparability payment under 5 U.S.C. 5304 which the senior executive was receiving immediately before that date. The newly converted rate is the senior executive's SES rate of basic pay. An agency's establishment of an SES rate of basic pay for a senior executive under this paragraph is not considered a pay adjustment for the purpose of applying § 534.401(c)(1).
(2) An SES member's rate of basic pay, plus any applicable locality-based comparability payment under 5 U.S.C. 5304 to which the employee was entitled on November 24, 2003, may not be reduced for 1 year from the first day of the first applicable pay period beginning on or after January 1, 2004.
(3) Certain SES members in positions that have geographic mobility requirements and who are assigned outside the 48 contiguous States and the District of Columbia to a position overseas or in Alaska, Hawaii, Guam and the Commonwealth of the Northern Mariana Islands, Puerto Rico, the U.S. Virgin Islands, or other U.S. territories and possessions as of the first day of the first applicable pay period beginning on or after January 1, 2004, will be converted to a new rate of basic pay that equals their current rate of basic pay, plus the amount of locality pay authorized for the applicable locality pay area upon reassignment to a position in the 48 contiguous States or the District of Columbia. The adjustment will be prospective, not retroactive, and it will not be considered a pay adjustment for the purpose of applying § 534.401(c)(1).
(4) On the first day of the first applicable pay period beginning on or after January 1, 2004, a law enforcement officer (LEO), as defined in 5 CFR 531.301, who is a member of the SES will continue to receive his or her rate of basic pay, plus any applicable special geographic pay adjustment established for LEOs under section 404(a) of the Federal Employees Pay Comparability Act of 1990 (Public Law 101-509) to which he or she was entitled immediately before that date. When the special geographic pay adjustment for LEOs no longer applies (because a higher locality pay percentage applies to employees in the locality pay area), the senior executive's rate of basic pay will be converted to his or her rate of basic pay, plus the special geographic pay adjustment for LEOs to which he or she
(c)
(1) An agency may increase a senior executive's rate of basic pay converted under paragraph (b) of this section on the first day of the first applicable pay period beginning on or after January 1, 2004, or on any date thereafter prior to obtaining certification under 5 U.S.C. 5307(d), but only up to the rate for level III of the Executive Schedule. An agency may provide such an increase only upon a determination that the senior executive's individual performance and/or contributions to agency performance so warrant and that the senior executive is otherwise eligible for such a pay adjustment (
(2) If there is an additional increase in the rate for level III of the Executive Schedule in 2004, and if that increase becomes effective as of the effective date prescribed in 5 U.S.C. 5318, an agency may review any determination made under paragraph (c)(1) of this section to determine whether, and to what extent, an additional pay increase may be warranted for a senior executive based on the same criteria used for the determination made under paragraph (c)(1) of this section. If the agency determines that an additional pay increase is warranted, that increase must be made effective as of the effective date of the increase made under paragraph (c)(1) of this section.
(3) Any adjustments in pay made under paragraphs (c)(1) and (2) of this section will be reviewed for the purpose of certification under 5 U.S.C. 5307(d).