Agricultural Marketing Service
Animal and Plant Health Inspection Service
Commodity Credit Corporation
Food and Nutrition Service
Forest Service
Rural Business-Cooperative Service
Census Bureau
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Navy Department
Energy Efficiency and Renewable Energy Office
Food and Drug Administration
National Institutes of Health
Coast Guard
Customs and Border Protection Bureau
Federal Emergency Management Agency
Transportation Security Administration
Fish and Wildlife Service
Geological Survey
Land Management Bureau
Minerals Management Service
National Indian Gaming Commission
National Park Service
Drug Enforcement Administration
National Institute of Corrections
Mine Safety and Health Administration
Federal Aviation Administration
Maritime Administration
National Highway Traffic Safety Administration
Surface Transportation Board
Alcohol and Tobacco Tax and Trade Bureau
Comptroller of the Currency
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Animal and Plant Health Inspection Service, USDA.
Final rule.
We are amending the regulations by adding the Mexican States of Campeche, Quintana Roo, and Yucatan to the list of regions considered free of exotic Newcastle disease. We have conducted a risk evaluation and have determined that these three Yucatan Peninsula States have met our requirements for being recognized as free of this disease. This action allows importation into the United States of poultry and poultry products from these regions. We are also adding a certification requirement to ensure that poultry and poultry products from Campeche, Quintana Roo, and Yucatan originate in those States or in any other region recognized by the Animal and Plant Health Inspection Service as free of exotic Newcastle disease and that, prior to export to the United States, such poultry and poultry products are not commingled with poultry and poultry products from regions where exotic Newcastle disease exists.
February 11, 2004.
Dr. Hatim Gubara, Staff Veterinarian, Regionalization Evaluation Services Staff, National Center for Import and Export, VS, APHIS, 4700 River Road Unit 38, Riverdale, MD 20737-1231; (301) 734-4356.
The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation of certain animals and animal products into the United States in order to prevent the introduction of various animal diseases, such as rinderpest, foot-and-mouth disease (FMD), classical swine fever (CSF), and exotic Newcastle disease (END). Among other things, § 94.6 of the regulations lists regions that are considered to be free of END.
On October 22, 2002, we published in the
We solicited comments concerning our proposal for 60 days ending December 23, 2002. We did not receive any comments. Therefore, for the reasons given in the proposed rule, we are adopting the changes to § 94.6 described in the previous paragraph.
Upon further consideration, however, we decided not to finalize our proposed changes to § 94.15. Some of the poultry carcasses, parts, or products produced in Campeche, Quintana Roo, and Yucatan for export may be produced in plants that do not meet the standards of the Food Safety Inspection Service (FSIS) of the U.S. Department of Agriculture (USDA) as specified in 9 CFR part 381. Such poultry carcasses, parts, or products are eligible to transit through the United States under current § 94.15(c). By not finalizing our proposed changes to § 94.15, we will allow such import-ineligible products to continue transiting the United States under the conditions specified in that section.
A comment we received on another proposed rule also had implications for the current rulemaking. On May 13, 2002, we published in the
Issues pertaining to the integrity of products exported from certain disease-free regions to the United States, such as the one discussed by that commenter, have acquired a new salience due to the advent of regionalization. Regionalization has allowed the Animal and Plant Health Inspection Service (APHIS) of the USDA to designate regions, as well as entire countries, as free of such animal diseases as CSF and END. While regionalization has allowed APHIS to exercise more flexibility in regulating and has helped to facilitate trade, it has caused APHIS to reconsider the issue of border controls in some cases. Border controls between high- and low-risk regions within a country or within a larger community, such as the European Union, may not always be equivalent to border controls between nations. There may now exist a greater likelihood that animal products intended for export to the United States from some disease-free regions could be derived from animals that originated in affected regions or that animals or animal products from free regions could be commingled with animals or animal products from affected regions prior to export to the United States. Such
Some sections of the regulations in part 94 do contain provisions aimed at reducing the potential risks posed by the commingling of import-eligible and ineligible animals and animal products prior to export to the United States. Section 94.11 places certain restrictions on meat and other animal products imported from certain regions that are designated in § 94.1 as free of rinderpest and FMD but that (1) supplement their meat supplies via the importation of fresh meat of ruminants or swine from regions affected by those diseases, (2) share a common land border with such regions, or (3) import animals from such regions under conditions less restrictive than would be acceptable for importation into the United States. Section 94.13 has similar provisions for pork and pork products imported from certain regions that are designated in § 94.12(a) as being free of swine vesicular disease but that border or have trading relationships with affected regions. Both of these sections contain requirements for additional certifications that include declarations that certain conditions intended to prevent commingling of animal products intended for export to the United States have been satisfied.
To prevent the commingling of import-eligible and ineligible poultry and poultry products prior to export to the United States, we are adopting an additional certification requirement similar to those in §§ 94.11 and 94.13 for imports from the newly eligible States of Campeche, Quintana Roo, and Yucatan. This requirement will be contained in a new § 94.25.
The introductory text of the new § 94.25 enumerates the risk factors that necessitate placing restrictions on the importation of live poultry, poultry meat, and other poultry products, including ship stores, airplane meals, and baggage containing such meat or animal products, from the Mexican States of Campeche, Quintana Roo, and Yucatan that go beyond those placed on imports from other regions designated in § 94.6 as END-free. Because these Mexican States supplement their meat supplies by the importation of fresh (chilled or frozen) poultry meat from END-affected regions, share common land borders with such regions, or import live poultry from such regions under conditions less restrictive than would be acceptable for importation into the United States, there exists the possibility that live poultry or poultry products that are intended for export to the United States could originate in affected regions or be commingled with live poultry and poultry products from surrounding END-affected regions. Such imports could present a risk of introducing END into the United States. Therefore, in addition to meeting all applicable requirements of part 93, which contains, among other things, general provisions for the importation of live poultry, and of 9 CFR chapter III, under which are included conditions for importation of poultry products promulgated by the FSIS, live poultry, poultry meat, and other poultry products imported into the United States from Campeche, Quintana Roo, and Yucatan must also satisfy the conditions specified in new § 94.25. As noted earlier, these risk factors are of greater concern now than they were in the past due to the advent of regionalization. In future rulemakings, therefore, we intend to apply the additional certification requirement more broadly to any region that we recognize as free of END but that is subject to these risk factors.
Paragraph (a) of new § 94.25 states that live poultry, poultry meat, and other poultry products from any region designated in the section must be accompanied by an additional certification by a full-time salaried veterinary officer of the Government of Mexico. Upon arrival of the live poultry, poultry meat, or other poultry product in the United States, the certification must be presented to an authorized inspector at the port of arrival.
Paragraph (b) contains requirements for the additional certification for live poultry imported from Campeche, Quintana Roo, and Yucatan. The certification accompanying the live poultry must identify the exporting region of the poultry as a region designated in § 94.6 as free of END at the time the poultry were in the region. In addition, the certification must state that the poultry (1) have not been in contact with poultry or poultry products from any region where END is considered to exist, (2) have not lived in a region where END is considered to exist, and (3) have not transited through a region where END is considered to exist unless moved directly in a sealed means of conveyance with the seal intact upon arrival at the point of destination. These provisions are intended to ensure that the live poultry have originated in an END-free region, have not been commingled with infected poultry or been in contact with infected poultry products either in the region of origin or while in transit prior to export to the United States, and are being exported from an END-free region. At this time, Campeche, Quintana Roo, and Yucatan, which are the only regions in Mexico that APHIS recognizes as being free of END, are the only regions to which these requirements will apply, but we expect to add more regions, in Mexico and worldwide, to § 94.25 in the future.
Paragraph (c) contains requirements for the additional certification accompanying poultry meat or other poultry products from Campeche, Quintana Roo, and Yucatan. The paragraph includes conditions for slaughter, handling, transiting, and processing that the certification must declare have been satisfied.
Paragraph (c)(1) specifies that the additional certification must state that the poultry meat or other poultry products have been derived from poultry that meet all requirements of § 94.25 and that have been slaughtered in a region designated in § 94.6 as free of END at a federally inspected slaughter plant that is under the direct supervision of a full-time salaried veterinarian of the Government of Mexico and that is approved to export poultry meat and other poultry products to the United States in accordance with the FSIS regulations in 9 CFR 381.196. This provision will help ensure that the poultry meat or other poultry products will only be derived from poultry that are free of END and that slaughtering will take place in establishments and under conditions that meet the standards of the FSIS.
Paragraph (c)(2) specifies that the additional certification must state that the poultry meat or other poultry products have not been in contact with poultry meat or other poultry products from any region where END is considered to exist. This provision will help to ensure that products originating in the three Mexican States will not be commingled in the region of origin with products from END-affected regions.
Paragraph (c)(3) specifies that the additional certification must state that the poultry meat or other poultry products have not transited through a region where END exists unless moved directly in a sealed means of conveyance with the seal intact upon arrival at the point of destination. This provision will help to ensure that poultry meat and other poultry products from Campeche, Quintana Roo, and Yucatan will not be subject to contamination through commingling with END-affected products while transiting through END-affected regions prior to export to the United States.
Finally, paragraph (c)(4) contains requirements for the additional certification that must accompany processed poultry meat or other poultry
We believe that the safeguards in new § 94.25 will allow for the safe importation of live poultry, poultry meat, and other poultry products from the Mexican States of Campeche, Quintana Roo, and Yucatan.
Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule with the changes discussed in this document.
This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the
This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
This rule amends the regulations by adding the Mexican States of Campeche, Quintana Roo, and Yucatan to the list of regions considered free of END and removing END-related restrictions on the transiting of poultry carcasses, parts, or products from these States through the United States that would no longer apply. The rule also adds a certification requirement to prevent commingling of products from Campeche, Quintana Roo, and Yucatan with products from END-affected regions prior to export to the United States.
A number of factors may influence how much of the poultry produced in the Yucatan Peninsula will be exported to the United States as a result of this rulemaking. These factors include domestic and international supply of, and demand for, poultry and poultry substitutes, U.S. grain prices, exchange rates, freight rates, the structure (number of large integrated operations versus the number of traditional and semi-traditional operations) of the poultry industry in the Yucatan Peninsula, and the ability of Yucatan Peninsula producers/packers consistently to ship cuts that meet U.S. market specifications.
As shown in table 1, Yucatan Peninsula poultry production peaked at roughly 100,000 metric tons (MTs) in 1997 and consistently accounted for about 8 percent of Mexico's total poultry production from 1992 until 1999, the last year for which data were available.
Our analysis of poultry production in the Yucatan Peninsula suggests 100,000 MTs as the upper limit for poultry and poultry products that could be made available for export to the United States at this time. The Yucatan Peninsula is a grain and oilseed deficit area. Most of the grains and oilseeds used in poultry production (the single largest and most expensive input in poultry production) are imported from the United States. This dependence on imported grains and oilseeds will tend to limit the growth of the Yucatan Peninsula's poultry production and, consequently, the amount of poultry and poultry products available for export to the United States.
It is far more likely that the actual amount of poultry and poultry products that will be exported to the United States from the Yucatan Peninsula States in the near term as a result of this rulemaking will be significantly less than 100,000 MTs. A general analysis of Mexican poultry production systems suggests that a maximum of 60 to 70 percent of Yucatan Peninsula poultry production might meet U.S. import standards.
These amounts make up a minuscule share of the U.S. market. The United States is the world's largest producer and exporter of poultry meat. In 1999, U.S. poultry meat production totaled 35.3 billion pounds (159,090,909 MTs), of which 83 percent was broiler meat, 15 percent was turkey meat, and 2 percent was other chicken meat. The total farm value of U.S. poultry production in 1999 was $22.4 billion. Broiler production accounted for the majority of the value at $15.1 billion, followed by eggs at $4.3 billion, turkey at $2.8 billion, and other chicken at $68 million. The high estimate of 52,500 MTs of Yucatan Peninsula poultry and poultry parts available for export to the United States translates to 0.033 percent of U.S. poultry production based on the 1999 figures. The low estimate of 18,000 MTs available for export equals 0.0113 percent of 1999 U.S. production. The percentages for estimated breast meat exports, of course, are even smaller.
The Regulatory Flexibility Act requires that agencies specifically consider the economic impact of their rules on small entities. Among the small entities potentially affected by this rule change are U.S. producers of poultry and poultry products, U.S. freight forwarders, and U.S. trucking and shipping firms. All of these categories are comprised primarily of small entities. Table 3 provides a breakdown.
The U.S. poultry industry is dominated by contract growing arrangements. A small number of very large, vertically integrated poultry companies own most poultry in the United States. The poultry are raised to a marketable size by farmers under contract arrangements. The vertically integrated companies do not qualify as small entities under the Small Business Administration's standard for small poultry enterprises—no more than $750,000 in annual revenues. Most contract poultry growers do qualify as small entities, however.
In theory, imported Yucatan poultry will increase the available supply of poultry in the United States, increase competition, and reduce prices. Such a development, while benefitting U.S. consumers, will negatively affect net revenues of U.S. producers. Due to the relatively small tonnage of poultry and poultry products expected to be exported from the Yucatan Peninsula to the United States, however, this rule is unlikely to have a measurable effect on U.S. poultry and poultry product supplies, poultry prices, or poultry producer revenues.
The other affected small entities—U.S. freight forwarding, trucking, or transport firms that have the capacity to transport Mexican poultry from U.S. land border ports or U.S. maritime ports—may benefit from increased economic activity as a result of this rulemaking. As is the case with poultry producers, however, these effects are likely to be very small due to the limited amount of poultry and poultry products expected to be exported to the United States from the Yucatan Peninsula States.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
This final rule contains an information collection requirement that was not included in the proposed rule. Specifically, this final rule adds an additional 50 burden hours for a certification that will have to be completed by Federal animal health authorities in Mexico to ensure that,
The Animal and Plant Health Inspection Service is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. For information pertinent to GPEA compliance related to this rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
Animal diseases, Imports, Livestock, Meat and meat products, Milk, Poultry and poultry products, Reporting and recordkeeping requirements.
7 U.S.C. 450, 7701-7772, and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 42 U.S.C. 4331 and 4332; 7 CFR 2.22, 2.80, and 371.4.
The Mexican States of Campeche, Quintana Roo, and Yucatan, which are declared in § 94.6(a)(2) to be free of exotic Newcastle disease (END), supplement their meat supply by the importation of fresh (chilled or frozen) poultry meat from regions designated in § 94.6(a) as regions where END is considered to exist, have a common land border with regions where END is considered to exist, or import live poultry from regions where END is considered to exist under conditions less restrictive than would be acceptable for importation into the United States. Thus, even though the Department has declared such regions to be free of END, live poultry originating in such free regions may be commingled with live poultry originating in an END-affected region and the meat and other animal products produced in such free regions may be commingled with the fresh (chilled or frozen) meat of animals from an END-affected region, resulting in an undue risk of introducing END into the United States. Therefore, live poultry, poultry meat and other poultry products, and ship stores, airplane meals, and baggage containing such meat or animal products originating in the free regions listed in this section may not be imported into the United States unless the following requirements, in addition to all other applicable requirements of part 93 of this chapter and of chapter III of this title, are met:
(a)
(b)
(1) The poultry have not been in contact with poultry or poultry products from any region where END is considered to exist;
(2) The poultry have not lived in a region where END is considered to exist; and
(3) The poultry have not transited through a region where END is considered to exist unless moved directly through the region in a sealed means of conveyance with the seal intact upon arrival at the point of destination.
(c)
(1) The poultry meat or other poultry products are derived from poultry that meet all requirements of this section and that have been slaughtered in a region designated in § 94.6 as free of END at a federally inspected slaughter plant that is under the direct supervision of a full-time salaried veterinarian of the Government of Mexico and that is approved to export poultry meat and other poultry products to the United States in accordance with § 381.196 of this title;
(2) The poultry meat or other poultry products have not been in contact with poultry meat or other poultry products from any region where END is considered to exist;
(3) The poultry meat or other poultry products have not transited through a region where END is considered to exist unless moved directly through the region in a sealed means of conveyance with the seal intact upon arrival at the point of destination; and
(4) If processed, the poultry meat or other poultry products were processed in a region designated in § 94.6 as free of END in a federally inspected processing plant that is under the direct supervision of a full-time salaried veterinarian of the Government of Mexico.
Food and Drug Administration, HHS.
Interim final rule; opportunity for public comment.
The Food and Drug Administration (FDA) is issuing an interim final rule to except human dura mater and human heart valve allografts, currently subject to application or notification requirements under the Federal Food, Drug, and Cosmetic Act (the act), from the scope of the definition of “human cells, tissues, or cellular or tissue-based products (HCT/P's)” subject to the registration and listing requirements contained in 21 CFR part 1271. That definition became effective on January 21, 2004. FDA is taking this action to assure that these products, which are currently subject to the act and therefore regulated under the current good manufacturing practice regulations set out in the quality system regulations in 21 CFR part 820 are not released from the scope of those regulations before a more comprehensive regulatory framework applicable to HCT/P's, including donor suitability requirements, good tissue practice regulations, and appropriate enforcement provisions, is fully in place. When that comprehensive framework is in place, FDA intends that human dura mater and human heart valves will be subject to it. FDA intends to revoke this interim final rule at that time.
The interim final rule is effective January 23, 2004. The compliance date is March 29, 2004. Submit written or electronic comments on the interim final rule by April 26, 2004.
Submit written comments to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Paula S. McKeever, Center for Biologics Evaluation and Research (HFM-17), Food and Drug Administration, 1401 Rockville Pike, Rockville, MD 20852-1448, 301-827-6210.
In an earlier related rulemaking entitled “Human Cells, Tissues, and Cellular and Tissue-Based Products; Establishment Registration and Listing” (66 FR 5447, January 19, 2001), the agency defined an HCT/P as “articles containing or consisting of human cells or tissues that are intended for implantation, transplantation, infusion, or transfer into a human recipient.” Examples of HCT/P's included, but were not limited to, ligaments, skin, bone, dura mater, heart valves, corneas, peripheral and cord blood hematopoietic stem cells, manipulated autologous chondrocytes, oocytes, and spermatozoa (66 FR at 5447 at 5467).
That rule further provided that HCT/P's meeting the criteria established in part 1271 (21 CFR part 1271) in § 1271.10 would be regulated solely under section 361 of the Public Health Service Act (the PHS Act) (42 U.S.C. 264). The effect of these two provisions was that human dura mater and human heart valve allografts meeting the definition of HCT/P and the criteria in § 1271.10 for regulation solely under section 361 of the PHS Act would be removed from the scope of regulations established under the authority of the act. Instead they would be regulated solely under the comprehensive HCT/P regulations that the agency intended to issue under the authority of section 361 of the PHS Act. The agency intended to replace the current good manufacturing practice requirements applicable to human dura mater and human heart valve allografts, which provide protection against the risks of communicable disease and are set out in the Quality System Regulation under part 820 (21 CFR part 820), with donor suitability and good tissue practice regulations, which would be developed specifically to address the risks of communicable disease transmission.
Accordingly, at the time the registration and listing rule published, FDA had proposed two other rules to establish the remainder of that comprehensive regulatory framework:
• Suitability Determination for Donors of Human Cellular and Tissue-Based Products (64 FR 52696, September 30, 1999), and
• Current Good Tissue Practice for Manufacturers of Human Cellular and Tissue-Based Products; Inspection and Enforcement (66 FR 1508, January 8, 2001).
When finalized, these three rules will establish a comprehensive regulatory framework for human cellular and tissue-based products, to be contained in part 1271. However, because all three regulations were not in place at the time the registration and listing rule published, the agency delayed, initially for 2 years, the effective date of the definition of HCT/P previously quoted. The agency made the registration and listing rule effective at first only for products currently regulated as human tissue intended for transplantation under 21 CFR part 1270. The agency explained that FDA did not intend to begin regulating human dura mater and human heart valve allografts that meet the criteria for regulation solely under section 361 of the PHS Act until the donor-suitability and good tissue practice (GTP) components of part 1271 become effective, or other appropriate steps have been taken. (66 FR at 5447 at 5453). Because finalizing the remaining two rules presented difficult issues and the rulemaking has taken more time than initially foreseen, FDA delayed the effective date for an additional year, until January 21, 2004 (68 FR 2689, January 21, 2003).
We (FDA) have now reached that date, and although work on the remaining two rules is nearing completion, the rules have not yet published. Rather than again delay the effective date of this provision, FDA believes that the provision should take effect, provided that the agency issues this interim final rule to assure that human dura mater and human heart valve allografts remain subject to appropriate provisions under the act, and including current good manufacturing practice requirements, until the comprehensive regulatory framework is in place. (FDA understands that many establishments may have reasonably expected FDA to delay the effective date of this provision again, because the donor suitability and GTP rules are not yet finalized. Once the comprehensive framework is in place, the agency intends to revoke this interim final rule, so that the comprehensive regulatory framework would then apply to human dura mater and human heart valve allografts, and these products would no longer be subject to regulation as medical devices under the act.
FDA is issuing this regulation under the authority of section 361 of the PHS Act. Under that section, FDA may make and enforce regulations necessary to prevent the introduction, transmission, or spread of communicable diseases between the States or from foreign countries into the States. (See sec. 1, Reorg. Plan No. 3 of 1966 at 42 U.S.C. 202 for delegation of section 361 of the PHS Act authority from the Surgeon General to the Secretary of the Department of Health and Human Services (the Secretary); See 21 CFR 5.10(a)(4) for delegation from the Secretary to FDA.) Intrastate transactions affecting interstate communicable disease transmission may also be regulated under section 361 of the PHS Act. (See
Under the provisions of the Administrative Procedure Act at 5 U.S.C. 553(b)(B) and FDA's administrative practices and procedures regulations at § 10.40(e)(1) (21 CFR 10.40(e)(1)), the Commissioner of Food and Drugs (the Commissioner) finds that use of prior notice and comment procedures for issuing this interim final rule is contrary to the public interest. In addition, the Commissioner finds good cause under 5 U.S.C. 553(d)(3) and § 10.40(c)(4)(ii) for making this interim final rule effective immediately upon filing at the Office of the Federal Register.
FDA concludes that this interim final rule is necessary to assure that human dura mater and human heart valve allografts, currently subject to good manufacturing practice regulatory requirements under the authority of the act, do not lose that protection during an interim period occurring between the date of their incorporation into the definition of HCT/P (January 21, 2004) and the effective date for the tissue donor suitability and GTP rules, to be finalized in the near future. Human dura mater and human heart valve allografts present significant risks of communicable disease transmission when the products are not handled properly. Absent this interim final rule, human dura mater and human heart valve allografts would fall within the definition of HCT/P's (§ 1271.3(d)(2)), and likely would also fall within the criteria for regulation solely under section 361 of the PHS Act (§ 1271.10). This would mean that human dura mater and human heart valve allografts would no longer be subject to the quality system regulation currently applicable to devices (part 820). If this occurred before the donor suitability and GTP rules became final, the public would lose the important public health protections afforded by the quality system regulation. In light of the significant public health risk that would be presented by these products if their manufacture were not subject to either a good tissue practice or current good manufacturing practice regulation, the Commissioner finds good cause to make these regulatory requirements final and effective immediately.
Although this agency is publishing this regulation as an interim final rule without an opportunity for prior notice and comment on a proposed rule, FDA is providing opportunity for comment on this interim final rule.
This interim final rule amends § 1271.3(d)(2) to delete the words “dura mater and heart valves” from the definition of “Human cells, tissues, or cellular or tissue-based products (HCT/P's).” It further adds new § 1271.3(d)(2)(viii), an exception to the definition of HCT/P's for human dura mater and human heart valve allografts. A minor change was necessary to § 1271.3(d)(2)(vi) and (d)(2)(vii) due to the addition of § 1271.3(d)(2)(viii).
FDA has examined the impacts of the interim final rule under Executive Order 12866 and the Regulatory Flexibility Act (Public Law 104-4), and the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1571), which are not applicable to interim final rules. Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this interim final rule is consistent with the regulatory philosophy and principles identified in the Executive order. In addition, the interim final rule is not a significant regulatory action as defined by the Executive order. Therefore, FDA is not required under the Executive order to submit it to Office of Management and Budget (OMB) for review.
The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of proposed and final rules on small entities. Because this rule actually narrows the scope of the current regulation, this interim final rule does not impose in any new requirements. The agency certifies that the interim final rule will not have a significant economic impact on a substantial number of small entities. The Regulatory Flexibility Act requires no further analysis of this interim final rule.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement of anticipated costs and benefits, before issuing any final rule that was the subject of a notice of proposed rulemaking and that may result in the expenditure in any 1 year by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation). The current inflation adjusted statutory threshold is about $110 million. FDA does not expect this interim final rule to result in any 1-year expenditure that would meet or exceed this amount. FDA is not required to prepare a written statement under the Unfunded Mandates Reform Act of 1995.
This interim final rule contains no collections of information. Therefore, clearance by OMB under Paperwork Reduction Act of 1995 is not required.
The agency has determined under 21 CFR 25.30(i) and 21 CFR 25.30(j) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
FDA has analyzed this interim final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the interim final rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the interim final rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.
Interested persons may submit to the Division of Dockets Management (see
Biologics, Drugs, Human cells and tissue-based products, Medical devices, Reporting and recordkeeping requirements.
42 U.S.C. 216, 243, 264, 271.
(d) * * *
(2) * * * Examples of HCT/P's include, but are not limited to, bone, ligament, skin, cornea, hematopoietic stem cells derived from peripheral and cord blood, manipulated autologous chondrocytes, epithelial cells on a synthetic matrix, and semen or other reproductive tissue.* * *
(vi) Cells, tissues, and organs derived from animals other than humans;
(vii) In vitro diagnostic products as defined in § 809.3(a) of this chapter; and
(viii) Human dura mater and human heart valve allografts.
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains regulations that facilitate the electronic filing of Form 8609, “Low-Income Housing Credit Allocation Certification.” The regulations affect taxpayers who file Form 8609.
Paul F. Handleman, (202) 622-3040 (not a toll-free number).
In 1998, Congress enacted the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 1998), Public Law 105-206 (112 Stat. 685) (1998). Section 2001(a) of RRA 1998 states that the policy of Congress is that paperless filing should be the preferred and most convenient means of filing Federal tax returns. Section 2001(a) of RRA 1998 also sets a long-range goal for the IRS to have at least 80 percent of all Federal tax returns filed electronically by 2007. Section 2001(b) of RRA 1998 requires the IRS to establish a 10-year strategic plan to eliminate barriers to electronic filing.
The IRS has identified § 1.42-1T(e)(1) and (h)(2) as regulatory provisions that impede electronic filing of Form 8609, “Low-Income Housing Credit Allocation Certification,” by requiring a taxpayer to include a third-party signature from an authorized State or local housing credit agency (Agency) official when filing the form. This Treasury decision eliminates that requirement.
Section 42 provides for a low-income housing credit that may be claimed as part of the general business credit under section 38. In general, the credit is allowable only if the owner of a qualified low-income building receives a housing credit allocation from an Agency of the jurisdiction where the building is located.
Section 1.42-1T(d)(8)(ii) provides that housing credit allocations are deemed made when Part I of Form 8609 is completed and signed by an authorized Agency official and mailed to the owner of the qualified low-income building. Under § 1.42-1T(e)(1), an owner is required to complete the Form 8609 on which the Agency made the applicable housing credit allocation and submit a copy of it with the owner's Federal income tax return for each year in the compliance period. Under § 1.42-1T(h)(2), the owner is required to file a completed Form 8609 (or copy thereof) with the owner's Federal income tax return for each of the 15 taxable years in the compliance period. Section 1.42-1T(h)(2) also provides other rules for completing Form 8609.
This Treasury decision facilitates the electronic filing of Federal tax returns by eliminating the requirements in § 1.42-1T(e)(1) and (h)(2) that an owner file a copy of the completed Form 8609 that is signed by the authorized Agency official with the owner's Federal income tax return for each of the 15 taxable years in the compliance period. Notwithstanding that the owner need not file a copy of the Form 8609 signed by the Agency official, the building owner must continue to retain that form for 3 years after the due date, including extensions, of the building owner's tax return for the tax year that includes the end of the 15-year compliance period. The other rules in § 1.42-1T(h)(2) for completing Form 8609 are also deleted. The requirements for completing and filing Form 8609 are addressed in the instructions to the form.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) and (d) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.
The principal author of these regulations is Paul F. Handleman, Office of the Associate Chief Counsel (Passthroughs and Special Industries), IRS. However, other personnel from the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
Section 1.42-1 also issued under 26 U.S.C. 42(n); * * *
(a) through (g) [Reserved]. For further guidance,
(h)
(i) [Reserved]. For further guidance,
(j)
(h)
Alcohol and Tobacco Tax and Trade Bureau (TTB), Treasury.
Final rule; Treasury decision.
The Alcohol and Tobacco Tax and Trade Bureau is recodifying its regulations pertaining to exportation of liquors. Due to the Homeland Security Act, we are also making administrative changes to these regulations to reflect the Bureau's new name and organizational structure. This document does not include any substantive regulatory changes.
This rule is effective on January 27, 2004.
Lisa M. Gesser, Regulations and Procedures Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 128, Morganza, Maryland 20660; (301-290-1460) or e-mail
As a part of our continuing efforts to reorganize title 27, chapter I, Code of Federal Regulations (27 CFR), we are removing all of part 252, Exportation of Liquors, from subchapter M—Alcohol, Tobacco and Other Excise Taxes, and recodifying it as part 28 in subchapter A—Liquor, of that chapter. We are also changing the title of subchapter A to “Subchapter A—Alcohol” and are revising the title of the new part 28 to read “Part 28—Exportation of Alcohol.” These changes better describe the contents of that subchapter and part. The table below shows from which section of part 252 the requirements of part 28 are derived.
In addition, because section 1111 of the Homeland Security Act of 2002 (Public Law 107-296, 116 Stat. 2135) divided the Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury, into two separate agencies, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in the Department of Justice, and the Alcohol and Tobacco Tax and Trade Bureau (TTB), which remains in the Department of the Treasury, we are making administrative changes to part 28. This reorganization requires us to amend each of the CFR parts under our jurisdiction to reflect our Bureau's new name and organizational structure.
The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule because there are no new or revised recordkeeping or reporting requirements.
Because no notice of proposed rulemaking is required for this rule under the Administrative Procedure Act (5 U.S.C. 553), the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
This final rule is not a significant regulatory action as defined in Executive Order 12866. Accordingly, this final rule is not subject to the analysis this Executive Order requires.
Because this final rule merely makes technical amendments to improve the organization of the regulations, no notice of proposed rulemaking and public comment period is required under 5 U.S.C. 553(b)(B). Similarly, because this final rule makes no substantive changes and is merely a recodification of existing regulations, this final rule is not subject to the effective date limitation of 5 U.S.C. 553(d).
The principal author of this document is Lisa M. Gesser, Regulations and Procedures Division, Alcohol and Tobacco Tax and Trade Bureau.
Advertising, Customs duties and inspection, Imports, Labeling, Packaging and containers, Reporting and recordkeeping requirements, Trade practices, Wine.
Advertising, Customs duties and inspection, Imports, Labeling, Liquors, Packaging and containers, Reporting and recordkeeping requirements, Trade practices.
Administrative practice and procedure, Alcohol and alcoholic beverages, Labeling.
Caribbean Basin initiative, Claims, Electronic funds transfers, Excise taxes, Exports, Gasohol, Imports, Labeling, Liquors, Packaging and containers, Puerto Rico, Reporting and recordkeeping requirements, Research, Security measures, Surety bonds, Vinegar, Virgin Islands, Warehouses.
Administrative practice and procedure, Claims, Electronic funds transfers, Excise taxes, Exports, Food additives, Fruit juices, Labeling, Liquors, Packaging and containers, Reporting and recordkeeping requirements, Research, Scientific equipment, Spices and flavorings, Surety bonds, Vinegar, Warehouses, Wine.
Beer, Claims, Electronic funds transfers, Excise taxes, Exports, Labeling, Packaging and containers, Reporting and recordkeeping requirements, Research, Surety bonds.
Aircraft, Alcohol and alcoholic beverages, Armed forces, Beer, Claims, Excise taxes, Exports, Foreign trade zones, Labeling, Liquors, Packaging and containers, Reporting and recordkeeping requirements, Surety bonds, Vessels, Warehouses, Wine.
Administrative practice and procedure, Claims, Excise taxes, Freedom of information, Law enforcement, Penalties, Reporting and recordkeeping requirements, Surety bonds.
Alcohol and alcoholic beverages, Claims, Excise taxes, Exports, Packaging and containers, Reporting and recordkeeping requirements.
Aircraft, Alcohol and alcoholic beverages, Armed forces, Beer, Claims, Excise taxes, Exports, Foreign trade zones, Labeling, Liquors, Packaging and containers, Reporting and recordkeeping requirements, Surety bonds, Vessels, Warehouses, Wine.
27 U.S.C. 205, unless otherwise noted.
26 U.S.C. 5301, 7805; 27 U.S.C. 205.
27 U.S.C. 205(e), 26 U.S.C. 5301 and 7805.
19 U.S.C. 81c, 1311; 26 U.S.C. 5001, 5002, 5004-5006, 5008, 5010, 5041, 5061, 5062, 5066, 5081, 5101, 5111-5113, 5142, 5143, 5146, 5171-5173, 5175, 5176, 5178-5181, 5201-5204, 5206, 5207, 5211-5215, 5221-5223, 5231, 5232, 5235, 5236, 5241-5243, 5271, 5273, 5301, 5311-5313, 5362, 5370, 5373, 5501-5505, 5551-5555, 5559, 5561, 5562, 5601, 5612, 5682, 6001, 6065, 6109, 6302, 6311, 6676, 6806, 7011, 7510, 7805; 31 U.S.C. 9301, 9303, 9304, 9306.
5 U.S.C. 552(a); 26 U.S.C. 5001, 5008, 5041, 5042, 5044, 5061, 5062, 5081, 5111-5113, 5121, 5122, 5142, 5143, 5173, 5206, 5214, 5215, 5351, 5353, 5354, 5356, 5357, 5361, 5362, 5364-5373, 5381-5388, 5391, 5392, 5511, 5551, 5552, 5661, 5662, 5684, 6065, 6091, 6109, 6301, 6302, 6311, 6651, 6676, 7011, 7302, 7342, 7502, 7503, 7606, 7805, 7851; 31 U.S.C. 9301, 9303, 9304, 9306.
19 U.S.C. 81c; 26 U.S.C. 5002, 5051-5054, 5056, 5061, 5091, 5111, 5113, 5142, 5143, 5146, 5222, 5401-5403, 5411-5417, 5551, 5552, 5555, 5556, 5671, 5673, 5684, 6011, 6061, 6065, 6091, 6109, 6151, 6301, 6302, 6311, 6313, 6402, 6651, 6656, 6676, 6806, 7011, 7342, 7606, 7805; 31 U.S.C. 9301, 9303-9308.
5 U.S.C. 301 and 552; 26 U.S.C. 4181, 4182, 5146, 5203, 5207, 5275, 5367, 5415, 5504, 5555, 5684(a), 5741, 5761(b), 5802, 6020, 6021, 6064, 6102, 6155, 6159, 6201, 6203, 6204, 6301, 6303, 6311, 6313, 6314, 6321, 6323, 6325, 6326, 6331-6343, 6401-6404, 6407, 6416, 6423, 6501-6503, 6511, 6513, 6514, 6532, 6601, 6602, 6611, 6621, 6622, 6651, 6653, 6656-6658, 6665, 6671, 6672, 6701, 6723, 6801, 6862, 6863, 6901, 7011, 7101, 7102, 7121, 7122, 7207, 7209, 7214, 7304, 7401, 7403, 7406, 7423, 7424, 7425, 7426, 7429, 7430, 7432, 7502, 7503, 7505, 7506, 7513, 7601-7606, 7608-7610, 7622, 7623, 7653, 7805.
26 U.S.C. 5001, 5002, 5111-5114, 5116, 5117, 5121-5124, 5142, 5143, 5145, 5146, 5206, 5207, 5301, 5352, 5555, 5613, 5681, 5691, 6001, 6011, 6061, 6065, 6071, 6091, 6109, 6151, 6311, 6314, 6402, 6511, 6601, 6621, 6651, 6657, 7011, 7805.
5 U.S.C. 552(a); 19 U.S.C. 81c, 1202; 26 U.S.C. 5001, 5007, 5008, 5041, 5051, 5054, 5061, 5111, 5112, 5114, 5121, 5122, 5124, 5201, 5205, 5207, 5232, 5273, 5301, 5313, 5555, 6302, 7805; 27 U.S.C. 203, 205; 44 U.S.C. 3504(h).
Coast Guard, DHS.
Temporary deviation from regulations.
The Coast Guard has approved a temporary deviation from the regulations governing the operation of the Jordan Bridge across the Southern Branch of the Elizabeth River, at mile 2.8, in Chesapeake, Virginia. From midnight on January 14, 2004, through midnight on February 14, 2004, this deviation allows the bridge to be untended and maintained in the full open position to vessels while a full assessment of the structural integrity of the bridge is completed. This deviation is necessary to facilitate the needs of navigation caused by an allision with a tug and barge that occurred on January 3, 2004.
This deviation is effective from midnight on January 14, 2004, through midnight on February 14, 2004.
Bill Brazier, Bridge Management Specialist, Fifth Coast Guard District, at (757) 398-6422.
On January 3, 2004, the Jordan Bridge experienced severe damage as a result of an allision with a tug and barge. This 75-year old vertical-lift drawbridge, which spans the Southern Branch of the Elizabeth River, was struck nearly dead center causing significant damage to the bridge. The Jordan Bridge, which connects the cities of Chesapeake and Portsmouth, is owned and operated by the City of Chesapeake.
The structural impact of the mishap essentially knocked the bridge, which rises vertically between two towers, off its track locking the span approximately 80 feet in the air. Subsequently, waterway passage maintained a 75-foot vertical height restriction and efforts to realign the bridge span were completed on January 12, 2004. On January 13, 2004, the damaged bridge was raised to the full open position to 145 feet, at mean high water, and the Captain of the Port of Hampton Roads lifted all waterway restrictions on the Jordan Bridge allowing all vessel traffic to transit. Until a full assessment of the damages to Jordan Bridge is completed, the bridge will be maintained in the full open position to vessels and untended, except for two days, from midnight on January 14, 2004, through midnight on February 14, 2004. On January 22 and 23, 2004, the bridge will be lowered for repair inspections. During these two days the bridge will be tended and will operate as required by the regulations in 33 CFR 117.997(b).
The District Commander has granted temporary deviation from the operating requirements listed in 33 CFR 117.997(b) to allow all vessel traffic to transit until a full assessment of Jordan Bridge is completed. The temporary deviation allows the Jordan Bridge across the Southern Branch of the Elizabeth River, mile 4.0, to remain in the full open position to vessels from midnight on January 14, 2004, through midnight on February 14, 2004, except for January 22 and 23, 2004.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Eighth Coast Guard District has issued a temporary deviation from the regulation governing the operation of the Louisiana Railroad Drawbridge, across the Upper Mississippi River, mile 282.1, at Louisiana, Missouri. This deviation allows the drawbridge to remain closed to navigation for 46 days from 8 a.m., January 15, 2004, until 8 a.m., February 29, 2004, Central Standard Time. The
This temporary deviation is effective from 8 a.m., January 15, 2004, until 8 a.m., February 29, 2004.
Materials referred to in this notice are available for inspection or copying at the office of the Eighth Coast Guard District, Bridge Administration Branch, Commander (obr), Eighth Coast Guard District, 1222 Spruce Street, St. Louis, MO 63103-2832, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. The Bridge Administration Branch maintains the public docket for this temporary deviation.
Roger K. Wiebusch, Bridge Administrator, Commander (obr), Eighth Coast Guard District, 1222 Spruce Street, St. Louis, MO 63103-2832, (314) 539-3900, extension 2378.
The Kansas City Southern Railway Company requested a temporary deviation on December 15, 2003 for the operation of the drawbridge to allow the bridge owner time for preventative maintenance. Presently, the draw opens on signal for passage of river traffic. This deviation allows the bridge to remain closed to navigation for 46 days from 8 a.m., January 15, 2004, until 8 a.m., February 29, 2004, Central Standard Time. Vessels not exceeding the vertical clearance of the drawbridge may pass under the drawbridge during repairs. There are no alternate routes for vessels transiting through mile 282.1, Upper Mississippi River.
The Louisiana Railroad Drawbridge provides a vertical clearance of 15.8 feet above normal pool in the closed to navigation position. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. In order to repair the four large wedge cylinders, the bridge must be kept inoperative and in the closed to navigation position. This deviation has been coordinated with waterway users. No objections were received.
In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Thirteenth Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Simpson Avenue Drawbridge at mile 0.5 and the Riverside Avenue Drawbridge at mile 0.9 across the Hoquiam River at Aberdeen, Washington. This deviation allows the bridges to temporarily operate on two-hour notice for all openings for vessels. The deviation is necessary to facilitate seismic retrofit of the structures.
This deviation is effective from 6 a.m., February 16 through 6 p.m., April 15, 2004.
Materials referred to in this document are available for inspection or copying at Commander (oan), Thirteenth Coast Guard District, 915 Second Avenue, Seattle, Washington 98174-1067 between 7:45 a.m. and 4:15 p.m., Monday through Friday, except Federal holidays. The telephone number is (206) 220-7270. The Bridge Section of the Aids to Navigation and Waterways Management Branch maintains the public docket for this temporary deviation.
Austin Pratt, Chief, Bridge Section, Aids to Navigation and Waterways Management Branch, (206) 220-7282.
Washington State Department of Transportation (WSDOT) requested this deviation from normal operations to facilitate seismic retrofit. The containment system for contaminants and other equipment must be modified or removed in order to operate the movable spans. Currently, the draws need not open for the passage of vessels unless one hour notice is provided at all times. Vessels on the related reach of the waterway should be able to provide at least two hours notice for openings without unreasonable inconvenience.
In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary interim rule; correction.
On January 6, 2004, the Coast Guard published a temporary interim rule with request for comments in the
Effective on January 27, 2004.
Lieutenant Commander Kevin Tone, Vessel and Facility Operating Standards Division (G-MSO-2), Coast Guard, telephone 202-267-0226.
The Coast Guard published a temporary interim rule with request for comments in the
Coast Guard, DHS.
Final rule; notice of enforcement.
The Captain of the Port Puget Sound will begin, on February 8, 2004, enforcing the Large Passenger Vessel Security and Safety Zones that were published in the
33 CFR 165.1317 will be enforced commencing February 8, 2004.
LTjg T. Thayer, c/o Captain of the Port Puget Sound, 1519 Alaskan Way South, Seattle, WA 98134 at (206) 217-6200 or (800) 688-6664 to obtain information concerning enforcement of this rule.
On January 14, 2004, the Coast Guard published a final rule (69 FR 2066) establishing regulations in 33 CFR 165.1317 for the security and safety of large passenger vessels in the navigable waters of Puget Sound and adjacent waters, Washington. These security and safety zones provide for the regulation of vessel traffic in the vicinity of certain large passenger vessels (as defined by the final rule) and exclude persons and vessels from the immediate vicinity of these large passenger vessels. Entry into these zones is prohibited unless otherwise exempted or excluded under the final rule or unless authorized by the Captain of the Port or his designee. The Captain of the Port Puget Sound will begin enforcing the Large Passenger Vessel Safety and Security Zones established in 33 CFR 165.1317 on February 8, 2004.
The Captain of the Port may be assisted by other Federal, State, or local agencies in enforcing this security zone.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Final rule, partial response to petitions for reconsideration.
This final rule temporarily permits compliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 208,
The agency received seven petitions for reconsideration of the November 2003 final rule, requesting that NHTSA consider modifying certain requirements of the amended FMVSS No. 208. Specifically, petitioners asked that the agency reconsider: The seat positioning procedures for the barrier tests, low risk deployment tests, and other test procedures; the test procedure for positioning the left foot of the 5th percentile adult female test dummy (barrier test); the “chin on rim” low risk deployment test procedure; the dummy positioning procedure for the head-on-instrument panel low risk deployment test with the 6-year-old test dummy; the definition of Plane C and D in the dummy positioning procedure for low risk deployment; and the effective date and content of Appendix A.
Petitioners have indicated that compliance with the amended requirements of FMVSS No. 208, prior to resolution of petitions for reconsideration, would cause substantial economic hardship because certification testing for the model year 2004 fleet has completed. This rulemaking partially responds to the petitions for reconsideration by permitting manufacturers to temporarily certify vehicles according to the test procedures required prior to the effective date of the November 2003 final rule.
This final rule becomes effective on January 27, 2004.
For non-legal issues, you may call Louis Molino, Office of Crashworthiness Standards, at (202) 366-2264, facsimile (202) 366-4329.
For legal issues, you may contact Chris Calamita, Office of the Chief Counsel, at (202) 366-2992, facsimile (202) 366-3820.
FMVSS No. 208 specifies the performance requirements for the protection of vehicle occupants in crashes. On November 19, 2003, the agency published a final rule that responded, in part, to petitions for reconsideration of the amendments to detailed seat and dummy positioning procedures we made in December 2001 to our May 2000 Advanced Air Bag Rule. In particular, we amended portions of FMVSS No. 208 regarding seat positioning procedures when using the 5th percentile adult female test dummy in the barrier test and the low risk deployment test; when using the 3-year-old and 6-year-old test dummies in the low risk deployment test; the fore and aft seat location for rear facing child restraint systems (RFCRSs); and the seat track position for the low risk deployment test. We also responded to petitions for reconsideration regarding test dummy positioning procedure issues, specifically those addressing foot positioning of the 5th percentile adult female test dummy; positioning out-of-position test dummies; and positioning of test dummy hands. The November 2003 final rule amended the definitions of “Plane C” and “Plane D” as they relate to test dummy positioning, Point 1 under the low risk deployment tests, and addressed other reference points and definitions. The November 2003 final rule also amended the list of child
In response to the November 2003 final rule, the agency received seven petitions for reconsideration. Petitions were submitted by Evenflo Company, Inc. (Evenflo), Maserati S.p.A. (Maserati), Alliance for Automobile Manufacturers (Alliance), TRW Automotive (TRW), Automotive Occupant Restraint Council (AORC), American Honda Motor Co., Inc. (Honda), and Ferrari S.p.A. (Ferrari). Petitioners have asked the agency to reconsider the following issues.
The Alliance has requested that the agency specify a vertical seat position when determining the seat cushion reference angle. Specifically, the Alliance requested that the seat be positioned in the full rear and full down position when determining the seat cushion reference angle. The Alliance also requested that S16.2.10.3.2 and S16.2.10.3.3 of FMVSS No. 208 be amended to specify that the reference point used in these sections is the seat cushion reference point.
The Alliance, Honda, and Ferrari petitioned to permit positioning of the left foot of the 5th percentile adult female test dummy in a manner more representative of a “real world” configuration. Ferrari and Honda requested that the left foot be permitted to rest on the foot rest. The Alliance requested that if spacer blocks are to be required, then the agency should specify the material properties of the spacer blocks for consistency in testing. Honda requested that the amendments for positioning the left foot of the 5th percentile adult female test dummy adopted in the November 2003 final rule be postponed until September 1, 2004. The Alliance requested that the amendments for positioning the left foot of the 5th percentile adult female test dummy, along with the rest of the November 2003 final rule, be postponed until September 1, 2005.
The Alliance and Honda requested that the agency amend the chin on rim test procedure to provide for consistency and repeatability in testing out-of-position drivers. The Alliance requested that for vehicle models with adjustable and non-adjustable steering wheels, the adjustable steering wheel should be positioned as close as possible to the position of the non-adjustable steering wheel. When spacer blocks are required to position the dummy's chin on the steering wheel, Honda requested that the agency specify the shape of the blocks. Honda stated that the pre-test load applied to the neck can vary with the shape of the spacer blocks. Honda also requested that the amendments for the “chin on rim” test procedure adopted in the November 2003 final rule be postponed until September 1, 2004.
Honda petitioned the agency to permit rotation of the lower legs when positioning the head of the six-year-old dummy on the instrument panel, in order to prevent bracing by the feet on the vehicle floor. Honda stated that this bracing prevents the torso from being rotated into position.
Honda also requested that spacer blocks be permitted when space is present between the six-year-old dummy's feet and the vehicle floor. Honda stated that variation of the feet due to lack of contact with the floor results in variation in the force required to maintain the thigh angle. Again with regards to the six-year-old dummy, Honda requested that the head-on-instrument panel test procedure specify the point and direction for applying the 222 N force to prevent differences in dummy position.
Honda further requested that the amendments for the head-on-instrument-panel test procedure adopted in the November 2003 rule be postponed until September 1, 2004.
The Alliance, Maserati, and Ferrari requested clarification of the procedure for determining the volumetric centers of an uninflated and statically inflated air bag, which are used to define Planes C and D. Maserati stated that the new definition of Plane C may alter the positioning of the dummy in low risk deployment testing by 50 mm and that the effect of this altered position on compliance is unknown at this time. The Alliance stated that one of its members has reported that the redefined Plane C may alter the positioning of the dummy by 30 mm.
The Alliance requested that the effective date for the amended definitions of Planes C and D be postponed to September 1, 2005. Ferrari requested a two year lead time and Maserati requested a three year lead time. AORC has requested that the agency revert to the previous method for defining Planes C and D.
Evenflo and TRW have requested that Appendix A be amended to reflect child restraint systems (CRSs) currently manufactured and available for retail purchase. Evenflo stated that several of the discontinued CRS models in Appendix A are no longer available. TRW petitioned the agency to create a separate Appendix to indicate which CRSs will be used in testing through at least 2006. To facilitate the use of automatic suppression systems based on weight detection, Honda petitioned the agency to limit the weight of CRSs. Honda also petitioned the agency to permit 18 months of lead time for the amended Appendix A.
The Alliance requested that the agency develop a procedure for installing CRSs equipped with lower anchorages and tether attachments. The Alliance stated that artificially tight installations can cause some occupant classification systems to misclassify the occupant. The Alliance also requested the effective date for the revised Appendix A be postponed until September 1, 2005.
The agency set a January 20, 2004 effective date for the amendments to the FMVSS No. 208 seat and dummy positioning procedures in the November 2003 final rule. The petitions filed by Evenflo, Maserati, the Alliance, TRW, AORC, Honda, and Ferrari have asked the agency to reconsider several aspects of that rulemaking. NHTSA is currently considering all seven petitions.
Given that the January 20, 2004 effective date occurred mid-model year, the agency has determined that it is appropriate to first partially respond to petitions concerning the effective date of the November 2003 final rule. Manufacturers are currently required to certify at least 20 percent of all vehicles manufactured between September 1, 2003 and August 31, 2004 as fully complying with the advanced air bag requirements, unless advanced credits are utilized. These production dates roughly correspond with the model year 2004 fleet. Much of the testing that manufacturers conduct to certify compliance of the 2004 model year fleet has already been done. Although we believe the new positioning procedures result in more accurate and repeatable dummy placement, the new procedures could result in a test dummy being placed differently relative to the air bag than it was during vehicle certification. As a result, it is possible that injury criteria could be exceeded under the new procedures, even though they were
This document adopts FMVSS No. 208a, which contains the pre-November 2003 final rule test procedures. Manufacturers may rely on the test procedures in FMVSS No. 208a until August 31, 2004, after which, the manufacturers will be required to meet the new requirements of FMVSS No. 208. (The November 2003 amendments to Appendix A already have an effective date of September 1, 2004.) If a manufacturer opts to certify a vehicle according to the procedures in FMVSS No. 208a, it must certify using all of the relevant seat and dummy positioning procedures in FMVSS No. 208a in place of the corresponding test procedures in FMVSS. No. 208. We have decided against any further extension of the old procedures because we believe the new positioning procedures should not require any more than minor modifications by affected manufacturers. Other issues raised in the petitions for reconsideration will be addressed by the agency in a separate document.
The agency believes that a partial response to the petitions for reconsideration is necessary so motor vehicle manufacturers do not face substantial economic hardship associated with certain new requirements of the amended FMVSS No. 208. As discussed in the petitions, the updated requirements of FMVSS No. 208 may necessitate retesting and recertification of occupant protection systems. By permitting compliance according to the old test procedures until August 31, 2004, vehicle manufacturers may avoid mid-model year product changes that would otherwise result from the November 2003 final rule, which went into effect on January 20, 2004.
NHTSA expects that all other issues raised in the petitions will be fully addressed prior to the new, September 1, 2004 effective date. In the event, however, that these issues have not been resolved, all affected manufacturers will be required to meet the new requirements. Effective dates of agency final rules are not stayed due to outstanding petitions for reconsideration of those rules.
Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
This rulemaking document was not reviewed under Executive Order 12866. It is not significant within the meaning of the DOT Regulatory Policies and Procedures. It does not impose any burden on manufacturers and effectively extends the compliance date for existing regulatory requirements for an additional seven months. The agency believes that this impact is so minimal as to not warrant the preparation of a full regulatory evaluation.
Pursuant to the Regulatory Flexibility Act, we have considered the impacts of this rulemaking action will have on small entities (5 U.S.C. 601
We have not conducted an evaluation of the impacts of this final rule under the National Environmental Policy Act. This rulemaking action effectively extends the date by which the manufacturers must comply with the newly upgraded requirements of FMVSS No. 208. This rulemaking does not impose any change that would have any environmental impacts. Accordingly, no environmental assessment is required.
E.O. 13132 requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” E.O. 13132 defines the term “Policies that have federalism implications” to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under E.O. 13132, NHTSA may not issue a regulation that has federalism implication, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or NHTSA consults with State and local officials early in the process of developing the proposed regulation.
This final rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government as specified in E.O. 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100
There are no information collection requirements in this rule.
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
If you have any responses to these questions, please forward them to Chris Calamita, Office of Chief Counsel, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.
Under the National Technology and Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.” This document permits temporary compliance with FMVSS No. 208 according to test procedures prior to amendments made in the November 2003 final rule. No new standards or procedures are adopted by this document.
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,
Imports, Motor vehicle safety, Reporting and recordkeeping requirements, Tires.
49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.50.
For vehicles manufactured between January 27, 2004 and August 31, 2004, a manufacturer may, at its option, comply with certain requirements of Standard No. 208 in accordance with the test procedures set forth in this § 571.208a instead of the corresponding test procedures in § 571.208.
S1 through S15 [Reserved]
S16.
S16.1
(a)
(b)
S16.2
S16.2.1 The vehicle, including test devices and instrumentation, is loaded as in S8.1.1 of FMVSS No. 208.
S16.2.2 Movable vehicle windows and vents are placed in the fully closed position, unless the vehicle manufacturer chooses to specify a different adjustment position prior to the time the vehicle is certified.
S16.2.3 Convertibles and open-body type vehicles have the top, if any, in place in the closed passenger compartment configuration.
S16.2.4 Doors are fully closed and latched but not locked.
S16.2.5 The dummy is clothed in form fitting cotton stretch garments with short sleeves and above the knee length pants. A size 7
S16.2.6 Limb joints are set at one g, barely restraining the weight of the limb when extended horizontally. Leg joints are adjusted with the torso in the supine position.
S16.2.7 Instrumentation shall not affect the motion of dummies during impact.
S16.2.8 The stabilized temperature of the dummy is at any level between 20.6 °C and 22.2 °C (69 °F to 72 °F).
S16.2.9
S16.2.9.1 Adjust a tiltable steering wheel, if possible, so that the steering wheel hub is at the geometric center of its full range of driving positions.
S16.2.9.2 If there is no setting detent at the mid-position, lower the steering wheel to the detent just below the mid-position.
S16.2.9.3 If the steering column is telescoping, place the steering column
S16.2.10
S16.2.10.1
S16.2.10.2
S16.2.10.3
S16.2.10.3.1 If the seat is adjustable in the fore and aft and/or vertical directions, move the seat to the rearmost position at the full down height adjustment. If the seat cushion adjusts fore and aft, independent of the seat back, set this adjustment to the full rearward position. If the seat cushion contains a height adjustment, independent of the seat back, set this adjustment to the full down position. Record a seat cushion reference angle.
S16.2.10.3.2 Using only controls which move the seat fore and aft, move the seat to the full forward position. If seat adjustments other than fore-aft are present and the seat cushion reference angle changes from that measured in S16.2.10.3.1, use those adjustments to maintain as closely as possible the angle recorded in S16.2.10.3.1.
S16.2.10.3.3 If the seat height is adjustable, determine the maximum and minimum heights at this position, while maintaining, as closely as possible, the angle recorded in S16.2.10.3.1. Set the seat at the midpoint height with the seat cushion reference angle set as closely as possible to the angle recorded in S16.2.10.3.1. Mark location of the seat for future reference.
S16.3
S16.3.1
S16.3.1.1 All angles are measured with respect to the horizontal plane unless otherwise stated.
S16.3.1.2 The dummy's neck bracket is adjusted to align the zero degree index marks.
S16.3.1.3 The term “midsagittal plane” refers to the vertical plane that separates the dummy into equal left and right halves.
S16.3.1.4 The term “vertical longitudinal plane” refers to a vertical plane parallel to the vehicle's longitudinal centerline.
S16.3.1.5 The term “vertical plane” refers to a vertical plane, not necessarily parallel to the vehicle's longitudinal centerline.
S16.3.1.6 The term “transverse instrumentation platform” refers to the transverse instrumentation surface inside the dummy's skull casting to which the neck load cell mounts. This surface is perpendicular to the skull cap's machined inferior-superior mounting surface.
S16.3.1.7 The term “thigh” refers to the femur between, but not including, the knee and the pelvis.
S16.3.1.8 The term “leg” refers to the lower part of the entire leg including the knee.
S16.3.1.9 The term “foot” refers to the foot including the ankle.
S16.3.1.10 The longitudinal centerline of a bucket seat cushion is determined at the widest part of the seat cushion. Measure perpendicular to the longitudinal centerline of the vehicle.
S16.3.1.11 For leg and thigh angles use the following references:
S16.3.1.11.1
S16.3.1.11.2
S16.3.2
S16.3.2.1
S16.3.2.1.1 With the seat in the position determined in S16.2.10, use only the controls which move the seat fore and aft to place the seat in the rearmost position, without adjusting independent height controls. If the seat cushion reference angle automatically changes as the seat is moved from the full forward position, maintain, as closely as possible, the seat cushion reference angle in S16.2.10.3.1, for the final forward position when measuring the pelvic angle as specified in S16.3.2.1.11.
S16.3.2.1.2 Fully recline the seat back, if adjustable. Install the dummy into the driver's seat, such that when the legs are positioned 120 degrees to the thighs, the calves of the legs are not touching the seat cushion.
S16.3.2.1.3
S16.3.2.1.4
S16.3.2.1.5 Hold the dummy's thighs down and push rearward on the upper torso to maximize the dummy's pelvic angle.
S16.3.2.1.6 Place the legs at 120 degrees to the thighs. Set the initial transverse distance between the longitudinal centerlines at the front of the dummy's knees at 160 to 170 mm (6.3 to 6.7 in), with the thighs and legs of the dummy in vertical planes. Push rearward on the dummy's knees to force the pelvis into the seat so there is no gap between the pelvis and the seat back or until contact occurs between the back of the dummy's calves and the front of the seat cushion.
S16.3.2.1.7 Gently rock the upper torso relative to the lower torso laterally in a side to side motion three times through a ± 5 degree arc (approximately 51 mm (2 in) side to side) to reduce friction between the dummy and the seat.
S16.3.2.1.8 If needed, extend the legs slightly so that the feet are not in contact with the floor pan. Let the thighs rest on the seat cushion to the extent permitted by the foot movement. Keeping the leg and the thigh in a vertical plane, place the foot in the vertical longitudinal plane that passes through the centerline of the accelerator pedal. Rotate the left thigh outboard about the hip until the center of the knee is the same distance from the midsagittal plane of the dummy as the right knee ± 5 mm (± 0.2 in). Using only controls which move the seat fore and aft, attempt to return the seat to the full forward position. If either of the dummy's legs first contacts the steering wheel, then adjust the steering wheel, if adjustable, upward until contact with the steering wheel is avoided. If the steering wheel is not adjustable, separate the knees enough to avoid steering wheel contact. Proceed with moving the seat forward until either the leg contacts the vehicle interior or the seat reaches the full forward position. (The right foot may contact and depress the accelerator and/or change the angle of the foot with respect to the leg during seat movement.) If necessary to avoid contact with the vehicles brake or clutch
S16.3.2.1.9 For vehicles without adjustable seat backs, adjust the lower neck bracket to level the head as much as possible. For vehicles with adjustable seat backs, while holding the thighs in place, rotate the seat back forward until the transverse instrumentation platform of the head is level to within ± 0.5 degree, making sure that the pelvis does not interfere with the seat bight. Inspect the abdomen to ensure that it is properly installed. If the torso contacts the steering wheel, adjust the steering wheel in the following order until there is no contact: Telescoping adjustment, lowering adjustment, raising adjustment. If the vehicle has no adjustments or contact with the steering wheel cannot be eliminated by adjustment, position the seat at the next detent where there is no contact with the steering wheel as adjusted in S16.2.9. If the seat is a power seat, position the seat to avoid contact while assuring that there is a maximum of 5 mm (0.2 in) distance between the steering wheel as adjusted in S16.2.9 and the point of contact on the dummy.
S16.3.2.1.10 If it is not possible to achieve the head level within ± 0.5 degrees, minimize the angle.
S16.3.2.1.11 Measure and set the dummy's pelvic angle using the pelvic angle gage (drawing TE-2504, incorporated by reference in 49 CFR part 572, subpart O, of this chapter). The angle shall be set to 20.0 degrees ± 2.5 degrees. If this is not possible, adjust the pelvic angle as close to 20.0 degrees as possible while keeping the transverse instrumentation platform of the head as level as possible by adjustments specified in S16.3.2.1.9 and S16.3.2.1.10.
S16.3.2.1.12 If the dummy is contacting the vehicle interior after these adjustments, move the seat rearward until there is a maximum of 5 mm (0.2 in) between the contact point of the dummy and the interior of the vehicle or if it has a manual seat adjustment, to the next rearward detent position. If after these adjustments, the dummy contact point is more than 5 mm (0.2 in) from the vehicle interior and the seat is still not in its forwardmost position, move the seat forward until the contact point is 5 mm (0.2 in) or less from the vehicle interior, or if it has a manual seat adjustment, move the seat to the closest detent position without making contact, or until the seat reaches its forwardmost position, whichever occurs first.
S16.3.2.2
S16.3.2.2.1 If the vehicle has an adjustable accelerator pedal, adjust it to the full forward position. Rest the right foot of the test dummy on the undepressed accelerator pedal with the rearmost point of the heel on the floor pan in the plane of the pedal. If the foot cannot be placed on the accelerator pedal, set it initially perpendicular to the leg and then place it as far forward as possible in the direction of the pedal centerline with the rearmost point of the heel resting on the floor pan. If the vehicle has an adjustable accelerator pedal and the right foot is not touching the accelerator pedal when positioned as above, move the pedal rearward until it touches the right foot. If the accelerator pedal in the full rearward position still does not touch the foot, leave the pedal in that position.
S16.3.2.2.2 If the ball of the foot does not contact the pedal, change the angle of the foot relative to the leg such that the toe of the foot contacts the undepressed accelerator pedal.
S16.3.2.2.3 Place the left foot on the toe-board with the rearmost point of the heel resting on the floor pan as close as possible to the point of intersection of the planes described by the toe-board and floor pan, and not on the wheel-well projection or foot rest.
S16.3.2.2.4 If the left foot cannot be positioned on the toe board, place the foot perpendicular to the lower leg centerline as far forward as possible with the heel resting on the floor pan.
S16.3.2.2.5 If necessary to avoid contact with the vehicle's brake or clutch pedal, rotate the test dummy's left foot about the lower leg. If there is still pedal interference, rotate the left leg outboard about the hip the minimum distance necessary to avoid the pedal interference. If the left foot does not contact the floor pan, place the foot parallel to the floor and place the leg as perpendicular to the thigh as possible.
S16.3.2.3
S16.3.2.3.1 Place the dummy's upper arms adjacent to the torso with the arm centerlines as close to a vertical longitudinal plane as possible.
S16.3.2.3.2 Place the palms of the dummy in contact with the outer part of the steering wheel rim at its horizontal centerline with the thumbs over the steering wheel rim.
S16.3.2.3.3 If it is not possible to position the thumbs inside the steering wheel rim at its horizontal centerline, then position them above and as close to the horizontal centerline of the steering wheel rim as possible.
S16.3.2.3.4 Lightly tape the hands to the steering wheel rim so that if the hand of the test dummy is pushed upward by a force of not less than 9 N (2 lb) and not more than 22 N (5 lb), the tape releases the hand from the steering wheel rim.
S16.3.3
S16.3.3.1
S16.3.3.1.1 With the seat in the position determined in S16.2.10, use only the controls which move the seat fore and aft to place the seat in the rearmost position, without adjusting independent height controls. If the seat cushion reference angle automatically changes as the seat is moved from the full forward position, maintain as closely as possible the seat cushion reference angle in S16.2.10.3.1, for the final forward position when measuring the pelvic angle as specified in S16.3.3.1.11.
S16.3.3.1.2 Fully recline the seat back, if adjustable. Install the dummy into the passenger's seat, such that when the legs are 120 degrees to the thighs, the calves of the legs are not touching the seat cushion.
S16.3.3.1.3
S16.3.3.1.4
S16.3.3.1.5 Hold the dummy's thighs down and push rearward on the upper torso to maximize the dummy's pelvic angle.
S16.3.3.1.6 Place the legs at 120 degrees to the thighs. Set the initial
S16.3.3.1.7 Gently rock the upper torso relative to the lower torso laterally side to side three times through a ± 5 degree arc (approximately 51 mm (2 in) side to side).
S16.3.3.1.8 If needed, extend the legs slightly so that the feet are not in contact with the floor pan. Let the thighs rest on the seat cushion to the extent permitted by the foot movement. With the feet perpendicular to the legs, place the heels on the floor pan. If a heel will not contact the floor pan, place it as close to the floor pan as possible. Using only controls which move the seat fore and aft, attempt to return the seat to the full forward position. If a dummy leg contacts the vehicle interior before the full forward position is attained, position the seat at the next detent where there is no contact. If the seats are power seats, position the seat to avoid contact while assuring that there is a maximum of 5 mm (0.2 in) distance between the vehicle interior and the point on the dummy that would first contact the vehicle interior.
S16.3.3.1.9 For vehicles without adjustable seat backs, adjust the lower neck bracket to level the head as much as possible. For vehicles with adjustable seat backs, while holding the thighs in place, rotate the seat back forward until the transverse instrumentation platform of the head is level to within ± 0.5 degrees, making sure that the pelvis does not interfere with the seat bight. Inspect the abdomen to insure that it is properly installed.
S16.3.3.1.10 If it is not possible to orient the head level within ± 0.5 degrees, minimize the angle.
S16.3.3.1.11 Measure and set the dummy's pelvic angle using the pelvic angle gage (drawing TE-2504, incorporated by reference in 49 CFR part 572, subpart O, of this chapter). The angle shall be set to 20.0 degrees ± 2.5 degrees. If this is not possible, adjust the pelvic angle as close to 20.0 degrees as possible while keeping the transverse instrumentation platform of the head as level as possible as specified in S16.3.3.1.9 and S16.3.3.1.10.
S16.3.3.1.12 If the dummy is contacting the vehicle interior after these adjustments, move the seat rearward until there is a maximum of 5 mm (0.2 in) between the contact point of the dummy and the interior of the vehicle or if it has a manual seat adjustment, to the next rearward detent position. If after these adjustments the dummy contact point is more than 5 mm (0.2 in) from the vehicle interior and the seat is still not in its forward most position, move the seat forward until the contact point is 5 mm (0.2 in) or less from the vehicle interior, or if it has a manual seat adjustment, move the seat to the closest detent position without making contact, or until the seat reaches its forward most position, whichever occurs first.
S16.3.3.2
S16.3.3.2.1 Place the passenger's feet flat on the toe board.
S16.3.3.2.2 If the feet cannot be placed flat on the toe board, set them perpendicular to the leg center lines and place them as far forward as possible with the heels resting on the floor pan.
S16.3.3.3
S16.3.3.3.1 Place the dummy's upper arms in contact with the seat back and the torso.
S16.3.3.3.2 Place the palms of the dummy in contact with the outside of the thighs.
S16.3.3.3.3 Place the little fingers in contact with the seat cushion.
S16.3.4
S16.3.4.1 If the head restraint has an automatic adjustment, leave it where the system positions the restraint after the dummy is placed in the seat.
S16.3.4.2 Adjust each head restraint to its lowest position.
S16.3.4.3 Measure the vertical distance from the top most point of the head restraint to the bottom most point. Locate a horizontal plane through the midpoint of this distance. Adjust each head restraint vertically so that this horizontal plane is aligned with the center of gravity (CG) of the dummy head.
S16.3.4.4 If the above position is not attainable, move the vertical center of the head restraint to the closest detent below the center of the head CG.
S16.3.4.5 If the head restraint has a fore and aft adjustment, place the restraint in the forwardmost position or until contact with the head is made, whichever occurs first.
S16.3.5
S16.3.5.1 If an adjustable seat belt D-ring anchorage exists, place it in the manufacturer's design position for a 5th percentile adult female with the seat in the position specified in S16.2.10.3.
S16.3.5.2 Place the Type 2 manual belt around the test dummy and fasten the latch.
S16.3.5.3 Ensure that the dummy's head remains as level as possible, as specified in S16.3.2.1.9 and S16.3.2.1.10 and S16.3.3.1.9 and S16.3.3.1.10.
S16.3.5.4 Remove all slack from the lap belt. Pull the upper torso webbing out of the retractor and allow it to retract; repeat this operation four times. Apply a 9 N (2 lbf) to 18 N (4 lbf) tension load to the lap belt. If the belt system is equipped with a tension-relieving device, introduce the maximum amount of slack into the upper torso belt that is recommended by the manufacturer. If the belt system is not equipped with a tension-relieving device, allow the excess webbing in the shoulder belt to be retracted by the retractive force of the retractor.
S17 through S19 [Reserved] See § 571.208, S17 through S19.
S20
S20.1
S20.1.1 Tests specifying the use of a car bed, a rear facing child restraint, or a convertible child restraint may be conducted using any such restraint listed in sections A, B, and C of Appendix A of FMVSS No. 208 respectively. The car bed, rear facing child restraint, or convertible child restraint may be unused or have been previously used only for automatic suppression tests. If it has been used, there shall not be any visible damage prior to the test.
S20.1.2 Each vehicle certified to this option shall comply in tests conducted with the right front outboard seating position, if adjustable fore and aft, at full rearward, middle, and full forward positions. If the child restraint or dummy contacts the vehicle interior, move the seat rearward to the next detent that provides clearance. If the seat is a power seat, move the seat rearward while assuring that there is a maximum of 5 mm (0.2 in) clearance.
S20.1.3 If the car bed, rear facing child restraint, or convertible child restraint is equipped with a handle, the vehicle shall comply in tests conducted with the handle at both the child restraint manufacturer's recommended position for use in vehicles and in the upright position.
S20.1.4 If the car bed, rear facing child restraint, or convertible child restraint is equipped with a sunshield, the vehicle shall comply in tests conducted with the sunshield both fully open and fully closed.
S20.1.5 The vehicle shall comply in tests with the car bed, rear facing child restraint, or convertible child restraint
(a) with the blanket covering the top and sides of the restraint, and
(b) with the blanket placed from the top of the vehicle's seat back to the forwardmost edge of the restraint.
S20.1.6 Except as otherwise specified, if the car bed, rear facing child restraint, or convertible child restraint has an anchorage system as specified in S5.9 of FMVSS No. 213 and is tested in a vehicle with a right front outboard vehicle seat that has an anchorage system as specified in FMVSS No. 225, the vehicle shall comply with the belted test conditions with the restraint anchorage system attached to the vehicle seat anchorage system and the vehicle seat belt unattached. It shall also comply with the belted test conditions with the restraint anchorage system unattached to the vehicle seat anchorage system and the vehicle seat belt attached. The vehicle shall comply with the unbelted test conditions with the restraint anchorage system unattached to the vehicle seat anchorage system.
S20.1.7 If the car bed, rear facing child restraint, or convertible child restraint comes equipped with a detachable base, the vehicle shall comply in tests conducted with the detachable base attached to the child restraint and with the detachable base unattached to the child restraint.
S20.1.8 Do not attach any tethers.
S20.1.9
S20.1.9.1
S20.1.9.2
S20.1.9.3 If the seat cushion adjusts fore and aft, independent of the seat back, set this adjustment to the full rearward position.
S20.1.9.4 If the seat height is adjustable, determine the maximum and minimum heights at the full rearward, middle, and full forward positions. Set the seat at the mid-point height for each of the three fore-aft test positions.
S20.1.9.5 The seat back angle, if adjustable, is set at the manufacturer's nominal design seat back angle for a 50th percentile adult male as specified in S8.1.3 of FMVSS No. 208.
S20.1.9.6 If adjustable, set the head restraint at the full down and full forward position.
S20.1.10 The longitudinal centerline of a bucket seat cushion is determined at the widest part of the seat cushion. Measure perpendicular to the longitudinal centerline of the vehicle.
S20.2
S20.2.1
S20.2.1.1 The vehicle shall comply in tests using any child restraint specified in section B and section C of Appendix A of FMVSS No. 208.
S20.2.1.2 Locate a vertical plane through the longitudinal centerline of the child restraint. This will be referred to as “Plane.”
S20.2.1.3 For bucket seats, “Plane B” refers to a vertical plane parallel to the vehicle longitudinal centerline through the longitudinal centerline of the right front outboard vehicle seat cushion. For bench seats, “Plane B” refers to a vertical plane through the right front outboard vehicle seat parallel to the vehicle longitudinal centerline the same distance from the longitudinal centerline of the vehicle as the center of the steering wheel.
S20.2.1.4
(a) The vehicle shall comply in both of the following positions, if applicable:
(1) Without attaching the child restraint anchorage system as specified in S5.9 of FMVSS No. 213 to a vehicle seat anchorage system specified in FMVSS No. 225, align the child restraint system facing rearward such that Plane A is aligned with Plane B.
(2) If the child restraint is certified to S5.9 of FMVSS No. 213, and the vehicle seat has an anchorage system as specified in FMVSS No. 225, attach the child restraint to the vehicle seat anchorage instead of aligning the planes. Do not attach the vehicle safety belt.
(b) While maintaining the child restraint positions achieved in S20.2.1.4(a), secure the child restraint by following, to the extent possible, the child restraint manufacturer's directions regarding proper installation of the restraint in the rear facing mode.
(c) Place any adjustable seat belt anchorages at the vehicle manufacturer's nominal design position for a 50th percentile adult male occupant. Cinch the vehicle belts to any tension from zero up to 134 N (30 lb) to secure the child restraint. Measure belt tension in a flat, straight section of the lap belt between the child restraint belt path and the contact point with the belt anchor or vehicle seat, on the side away from the buckle (to avoid interference from the shoulder portion of the belt).
(d) Position the 49 CFR part 572 subpart R 12-month-old CRABI dummy in the child restraint by following, to the extent possible, the manufacturer's instructions provided with the child restraint for seating infants.
(e) Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and close all vehicle doors. Wait 10 seconds, then check whether the air bag is deactivated.
S20.2.1.5
(a) The vehicle shall comply in both of the following positions, if applicable:
(1) Without attaching the child restraint anchorage system as specified in S5.9 of FMVSS No. 213 to a vehicle seat anchorage system specified in FMVSS No. 225, align the child restraint system facing forward such that Plane A is aligned with Plane B.
(2) If the child restraint is certified to S5.9 of FMVSS No. 213, and the vehicle seat has an anchorage system as specified in FMVSS No. 225, attach the child restraint to the vehicle seat anchorage instead of aligning the planes. Do not attach the vehicle safety belt.
(b) While maintaining the child restraint positions achieved in S20.2.1.5(a), secure the child restraint by following, to the extent possible, the child restraint manufacturer's directions regarding proper installation of the restraint in the forward facing mode.
(c) Place any adjustable seat belt anchorages at the vehicle manufacturer's nominal design position for a 50th percentile adult male occupant. Cinch the vehicle belts to any tension from zero up to 134 N (30 lb) to secure the child restraint. Measure belt tension in a flat, straight section of the lap belt between the child restraint belt path and the contact point with the belt anchor or vehicle seat, on the side away from the buckle (to avoid interference from the shoulder portion of the belt).
(d) Position the 49 CFR part 572 subpart R 12-month-old CRABI dummy in the child restraint by following, to the extent possible, the manufacturer's instructions provided with the child restraint for seating infants.
(e) Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and close all vehicle doors. Wait 10 seconds, then check whether the air bag is deactivated.
S20.2.2
S20.2.2.1 The vehicle shall comply in tests using any child restraint specified in section B and section C of Appendix A of FMVSS No. 208.
S20.2.2.2 Locate a vertical plane through the longitudinal centerline of the child restraint. This will be referred to as “Plane A”.
S20.2.2.3 For bucket seats, “Plane B” refers to a vertical plane parallel to the vehicle longitudinal centerline through the longitudinal centerline of the right front outboard vehicle seat cushion. For bench seats, “Plane B” refers to a vertical plane through the right front outboard seat parallel to the vehicle longitudinal centerline the same distance from the longitudinal centerline of the vehicle as the center of the steering wheel.
S20.2.2.4
(a) Align the child restraint system facing rearward such that Plane A is aligned with Plane B and the child restraint is in contact with the seat back.
(b) Position the 49 CFR part 572 subpart R 12-month-old CRABI dummy in the child restraint by following, to the extent possible, the manufacturer's instructions provided with the child restraint for seating infants.
(c) Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and close all vehicle doors. Wait 10 seconds, then check whether the air bag is deactivated.
S20.2.2.5
(a) Align the child restraint system facing forward such that Plane A is aligned with Plane B and the child restraint is in contact with the seat back.
(b) Position the 49 CFR part 572 subpart R 12-month-old CRABI dummy in the child restraint by following, to the extent possible, the manufacturer's instructions provided with the child restraint for seating infants.
(c) Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and close all vehicle doors. Wait 10 seconds, then check whether the air bag is deactivated.
S20.2.3
S20.2.3.1 The vehicle shall comply in tests using any car bed specified in section A of Appendix A of FMVSS No. 208.
S20.2.3.2(a) Install the car bed by following, to the extent possible, the car bed manufacturer's directions regarding proper installation of the car bed.
(b) Place any adjustable seat belt anchorages at the vehicle manufacturer's nominal design position for a 50th percentile adult male occupant. Cinch the vehicle belts to secure the car bed.
(c) Position the 49 CFR part 572 subpart K Newborn Infant dummy in the car bed by following, to the extent possible, the car bed manufacturer's instructions provided with the car bed for positioning infants.
(d) Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and close all vehicle doors. Wait 10 seconds, then check whether the air bag is deactivated.
S20.3
S20.3.1 Each vehicle certified to this option shall comply in tests conducted with the right front outboard seating position, if adjustable fore and aft, at the full rearward, middle, and, subject to S16.3.3.1.8, full forward positions. All tests are conducted with the seat height, if adjustable, in the mid-height position.
S20.3.2 Place a 49 CFR part 572 subpart O 5th percentile adult female test dummy at the right front outboard seating position of the vehicle, in accordance with procedures specified in S16.3.3 of this standard, except as specified in S20.3.1, subject to the fore-aft seat positions in S20.3.1. Do not fasten the seat belt.
S20.3.3 Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and then close all vehicle doors.
S20.3.4 Wait 10 seconds, then check whether the air bag system is activated.
S20.4
S20.4.1 Position the right front outboard vehicle seat in the full forward seat track position, adjust the seat height (if adjustable) to the mid-height position, and adjust the seat back (if adjustable) to the nominal design position for a 50th percentile adult male as specified in S8.1.3 of FMVSS No. 208. Position adjustable lumbar supports so that the lumbar support is in its lowest, retracted or deflated adjustment position. Position any adjustable parts of the seat that provide additional support so that they are in the lowest or most open adjustment position. If the seat cushion adjusts fore and aft, independent of the seat back, set this adjustment to the full rearward position. If adjustable, set the head restraint at the full down position. If the child restraint or dummy contacts the vehicle interior, move the seat rearward to the next detent that provides clearance. If the seat is a power seat, move the seat rearward while assuring that there is a maximum of 5 mm (0.2 in) clearance.
S20.4.2 The vehicle shall comply in tests using any child restraint specified in section B and section C of Appendix A to FMVSS No. 208.
S20.4.3 Locate a vertical plane through the longitudinal centerline of the child restraint. This will be referred to as “Plane A”.
S20.4.4 For bucket seats, “Plane B” refers to a vertical plane parallel to the vehicle longitudinal centerline through the geometric center of the right front outboard seat cushion. For bench seats, “Plane B” refers to a vertical plane through the right front outboard seat parallel to the vehicle longitudinal centerline that is the same distance from the longitudinal centerline of the vehicle as the center of the steering wheel.
S20.4.5 Align the child restraint system facing rearward such that Plane A is aligned with Plane B.
S20.4.6 If the child restraint is certified to S5.9 of FMVSS No. 213, and the vehicle seat has an anchorage system as specified in FMVSS No. 225, attach the child restraint to the vehicle seat anchorage instead of aligning the planes. Do not attach the vehicle safety belt.
S20.4.7 While maintaining the child restraint position achieved in S20.4.5, secure the child restraint by following, to the extent possible, the child restraint manufacturer's directions regarding proper installation of the restraint in the rear facing mode. Place any adjustable seat belt anchorages at the manufacturer's nominal design position for a 50th percentile adult male occupant. Cinch the vehicle belts to any tension from zero up to 134 N (30 lb) to secure the child restraint. Measure belt tension in a flat, straight section of the lap belt between the child restraint belt path and the contact point with the belt anchor or vehicle seat, on the side away from the buckle (to avoid interference from the shoulder portion of the belt).
S20.4.8 Position the 49 CFR part 572 subpart R 12-month-old CRABI dummy in the child restraint by following, to the extent possible, the manufacturer's instructions provided with the child restraint for seating infants.
S20.4.9 Deploy the right front outboard frontal air bag system. If the air bag system contains a multistage inflator, the vehicle shall be able to comply at any stage or combination of stages or time delay between successive stages that could occur in the presence of an infant in a rear facing child restraint and a 49 CFR part 572, subpart
S21 [Reserved]
S22
S22.1
S22.1.1 Tests specifying the use of a forward facing child restraint, including a booster seat where applicable, may be conducted using any such restraint listed in section C and section D of Appendix A of FMVSS No. 208, respectively. The child restraint may be unused or have been previously used only for automatic suppression tests. If it has been used, there shall not be any visible damage prior to the test. Booster seats are to be used in the manner appropriate for a 3-year-old child of the same height and weight as the 3-year-old child dummy.
S22.1.2 Unless otherwise specified, each vehicle certified to this option shall comply in tests conducted with the right front outboard seating position at the full rearward, middle, and the full forward positions. If the dummy contacts the vehicle interior, move the seat rearward to the next detent that provides clearance. If the seat is a power seat, move the seat rearward while assuring that there is a maximum of 5 mm (0.2 in) clearance.
S22.1.3 Except as otherwise specified, if the child restraint has an anchorage system as specified in S5.9 of FMVSS No. 213 and is tested in a vehicle with a right front outboard vehicle seat that has an anchorage system as specified in FMVSS No. 225, the vehicle shall comply with the belted test conditions with the restraint anchorage system attached to the vehicle seat anchorage system and the vehicle seat belt unattached. It shall also comply with the belted test conditions with the restraint anchorage system unattached to the vehicle seat anchorage system and the vehicle seat belt attached.
S22.1.4 Do not attach any tethers.
S22.1.5 The definitions provided in S16.3.1 through S16.3.10 apply to the tests specified in S22.
S22.1.6 For leg and thigh angles use the following references:
(a)
(b)
S22.1.7
S22.1.7.1
S22.1.7.2
S22.1.7.3 If the seat cushion adjusts fore and aft, independent of the seat back, set this adjustment to the full rearward position.
S22.1.7.4 If the seat height is adjustable, determine the maximum and minimum heights at the full rearward seat track position, the middle seat track position, and the full forward seat track position. Set the seat at the mid-point height for each of the three fore-aft test positions.
S22.1.7.5 The seat back angle, if adjustable, is set at the manufacturer's nominal design seat back angle for a 50th percentile adult male as specified in S8.1.3 of FMVSS No. 208.
S22.1.7.6 If adjustable, set the head restraint at the full down and full forward position.
S22.2
S22.2.1
S22.2.1.1 Install the restraint in the right front outboard seat in accordance, to the extent possible, with the child restraint manufacturer's instructions provided with the seat for use by children with the same height and weight as the 3-year-old child dummy.
S22.2.1.2 Locate a vertical plane through the longitudinal centerline of the child restraint. This will be referred to as “Plane A”.
S22.2.1.3 For bucket seats, “Plane B” refers to a vertical longitudinal plane through the longitudinal centerline of the seat cushion of the right front outboard vehicle seat. For bench seats, “Plane B” refers to a vertical plane through the right front outboard vehicle seat parallel to the vehicle longitudinal centerline the same distance from the longitudinal centerline of the vehicle as the center of the steering wheel.
22.2.1.4 The vehicle shall comply in both of the following positions, if applicable:
(a) Without attaching the child restraint anchorage system as specified in S5.9 of FMVSS No. 213 to a vehicle seat anchorage system specified in FMVSS No. 225 and without attaching any tethers, align the child restraint system facing forward such that Plane A is aligned with Plane B.
(b) If the child restraint is certified to S5.9 of FMVSS No. 213, and the vehicle seat has an anchorage system as specified in FMVSS No. 225, attach the child restraint to the vehicle seat anchorage instead of aligning the planes. Do not attach the vehicle safety belt.
S22.2.1.5
S22.2.1.5.1 Place any adjustable seat belt anchorages at the vehicle manufacturer's nominal design position for a 50th percentile adult male occupant. Cinch the vehicle belts to any tension from zero up to 134 N (30 lb) to secure the child restraint. Measure belt tension in a flat, straight section of the lap belt between the child restraint belt path and the contact point with the belt anchor or vehicle seat, on the side away from the buckle (to avoid interference from the shoulder portion of the belt).
S22.2.1.5.2 Position the 49 CFR part 572 subpart P 3-year-old child dummy in the child restraint such that the dummy's lower torso is centered on the child restraint and the dummy's spine is against the seat back of the child restraint. Place the arms at the dummy's sides.
S22.2.1.5.3 Attach all belts that come with the child restraint that are appropriate for a child of the same height and weight as the 3-year-old child dummy, if any, by following, to the extent possible, the manufacturer's instructions provided with the child restraint for seating children.
S22.2.1.6
S22.2.1.6.1 Place any adjustable seat belt anchorages at the vehicle manufacturer's nominal design position for a 50th percentile adult male occupant. For booster seats designed to be secured to the vehicle seat even when empty, cinch the vehicle belts to any tension from zero up to 134 N (30 lb) to secure the booster seat. Measure belt tension in a flat, straight section of the lap belt between the child restraint belt path and the contact point with the belt anchor or vehicle seat, on the side away from the buckle (to avoid interference from the shoulder portion of the belt).
S22.2.1.6.2 Position the 49 CFR part 572 subpart P 3-year-old child dummy
S22.2.1.6.3 If applicable, attach all belts that come with the child restraint that are appropriate for a child of the same height and weight as the 3-year-old child dummy, if any, by following, to the extent possible, the manufacturer's instructions provided with the child restraint for seating children.
S22.2.1.6.4 If applicable, place the Type 2 manual belt around the test dummy and fasten the latch. Remove all slack from the lap belt portion. Pull the upper torso webbing out of the retractor and allow it to retract; repeat this four times. Apply a 9 to 18 N (2 to 4 lb) tension load to the lap belt. Allow the excess webbing in the upper torso belt to be retracted by the retractive force of the retractor.
S22.2.1.7 Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and then close all vehicle doors.
S22.2.1.8 Wait 10 seconds, then check whether the air bag is deactivated.
S22.2.2
S22.2.2.1
(a) Position the dummy in the seated position and place it on the right front outboard seat.
(b) In the case of vehicles equipped with bench seats, position the midsagittal plane of the dummy vertically and parallel to the vehicle's longitudinal centerline and the same distance from the vehicle's longitudinal centerline as the center of the steering wheel. In the case of vehicles equipped with bucket seats, position the midsagittal plane of the dummy vertically such that it coincides with the longitudinal centerline of the seat cushion. Position the torso of the dummy against the seat back. Position the dummy's thighs against the seat cushion.
(c) Allow the legs of the dummy to extend off the surface of the seat.
(d) Rotate the dummy's upper arms down until they contact the seat back.
(e) Rotate the dummy's lower arms until the dummy's hands contact the seat cushion.
(f) Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and then close all vehicle doors.
(g) Wait 10 seconds, then check whether the air bag is deactivated.
S22.2.2.2
S22.2.2.3
(a) Position the dummy in the seated position and place it on the right front outboard seat.
(b) In the case of vehicles equipped with bench seats, position the midsagittal plane of the dummy vertically and parallel to the vehicle's longitudinal centerline and the same distance from the vehicle's longitudinal centerline as the center of the steering wheel. In the case of vehicles equipped with bucket seats, position the midsagittal plane of the dummy vertically such that it coincides with the longitudinal centerline of the seat cushion. Position the dummy with the spine vertical so that the horizontal distance from the dummy's back to the seat back is no less than 25 mm (1.0 in) and no more than 150 mm (6.0 in), as measured along the dummy's midsagittal plane at the mid-sternum level. To keep the dummy in position, a material with a maximum breaking strength of 311 N (70 lb) may be used to hold the dummy.
(c) Position the dummy's thighs against the seat cushion.
(d) Allow the legs of the dummy to extend off the surface of the seat.
(e) Position the upper arms parallel to the spine and rotate the dummy's lower arms until the dummy's hands contact the seat cushion.
(f) Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and then close all vehicle doors.
(g) Wait 10 seconds, then check whether the air bag is deactivated.
S22.2.2.4
(a) In the case of vehicles equipped with bench seats, position the midsagittal plane of the dummy vertically and parallel to the vehicle's longitudinal centerline and the same distance from the vehicle's longitudinal centerline as the center of the steering wheel. In the case of vehicles equipped with bucket seats, position the midsagittal plane of the dummy vertically such that it coincides with the longitudinal centerline of the seat cushion.
(b) Position the dummy in the seated position forward in the seat such that the legs are vertical and the back of the legs rest against the front of the seat with the spine vertical. If the dummy's feet contact the floor pan, rotate the legs forward until the dummy is resting on the seat with the feet positioned flat on the floor pan and the dummy spine vertical. To keep the dummy in position, a material with a maximum breaking strength of 311 N (70 lb) may be used to hold the dummy.
(c) Place the upper arms parallel to the spine.
(d) Lower the dummy's lower arms such that they contact the seat cushion.
(e) Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and then close all vehicle doors.
(f) Wait 10 seconds, then check whether the air bag is deactivated.
S22.2.2.5
(a) In the case of vehicles equipped with bench seats, position the midsagittal plane of the dummy vertically and parallel to the vehicle's longitudinal centerline and the same distance from the vehicle's longitudinal centerline as the center of the steering wheel rim. In the case of vehicles equipped with bucket seats, position the midsagittal plane of the dummy vertically such that it coincides with the longitudinal centerline of the seat cushion. Position the dummy in a standing position on the right front outboard seat cushion facing the front of the vehicle while placing the heels of the dummy's feet in contact with the seat back.
(b) Rest the dummy against the seat back, with the arms parallel to the spine.
(c) If the head contacts the vehicle roof, recline the seat so that the head is no longer in contact with the vehicle roof, but allow no more than 5 mm (0.2 in) distance between the head and the roof. If the seat does not sufficiently recline to allow clearance, omit the test.
(d) If necessary use a material with a maximum breaking strength of 311 N (70 lb) or spacer blocks to keep the dummy in position.
(e) Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and then close all vehicle doors.
(f) Wait 10 seconds, then check whether the air bag is deactivated.
S22.2.2.6
(a) In the case of vehicles equipped with bench seats, position the midsagittal plane of the dummy vertically and parallel to the vehicle's longitudinal centerline and the same distance from the vehicle's longitudinal centerline as the center of the steering wheel. In the case of vehicles equipped with bucket seats, position the midsagittal plane of the dummy vertically such that it coincides with the longitudinal centerline of the seat cushion.
(b) Position the dummy in a kneeling position in the right front outboard seat with the dummy facing the front of the vehicle with its toes at the intersection of the seat back and seat cushion. Position the dummy so that the spine is vertical. Push down on the legs so that they contact the seat as much as possible and then release. Place the arms parallel to the spine.
(c) If necessary use a material with a maximum breaking strength of 311 N (70 lb) or spacer blocks to keep the dummy in position.
(d) Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and then close all vehicle doors.
(e) Wait 10 seconds, then check whether the air bag is deactivated.
S22.2.2.7
(a) In the case of vehicles equipped with bench seats, position the midsagittal plane of the dummy vertically and parallel to the vehicle's longitudinal centerline and the same distance from the vehicle's longitudinal centerline as the center of the steering wheel. In the case of vehicles equipped with bucket seats, position the midsagittal plane of the dummy vertically such that it coincides with the longitudinal centerline of the seat cushion.
(b) Position the dummy in a kneeling position in the right front outboard seat with the dummy facing the rear of the vehicle. Position the dummy such that the dummy's head and torso are in contact with the seat back. Push down on the legs so that they contact the seat as much as possible and then release. Place the arms parallel to the spine.
(c) Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and then close all vehicle doors.
(d) Wait 10 seconds, then check whether the air bag is deactivated.
S22.2.2.8
(a) Lay the dummy on the right front outboard seat such that the following criteria are met:
(1) The midsagittal plane of the dummy is horizontal,
(2) The dummy's spine is perpendicular to the vehicle's longitudinal axis,
(3) The dummy's arms are parallel to its spine,
(4) A plane passing through the two shoulder joints of the dummy is vertical,
(5) The anterior of the dummy is facing the vehicle front,
(6) The head of the dummy is positioned towards the passenger door, and
(7) The horizontal distance from the topmost point of the dummy's head to the vehicle door is 50 to 100 mm (2-4 in).
(8) The dummy is as far back in the seat as possible.
(b) Rotate the thighs as much as possible toward the chest of the dummy and rotate the legs as much as possible against the thighs.
(c) Move the dummy's upper left arm parallel to the vehicle's transverse plane and the lower left arm 90 degrees to the upper arm. Rotate the lower left arm about the elbow joint and toward the dummy's head until movement is obstructed.
(d) Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and then close all vehicle doors.
(e) Wait 10 seconds, then check whether the air bag is deactivated.
S22.3
S22.3.1 Each vehicle certified to this option shall comply in tests conducted with the right front outboard seating position at the full rearward, middle, and, subject to S16.3.3.1.8, full forward positions. All tests are conducted with the seat height, if adjustable, in the mid-height position.
S22.3.2 Place a 49 CFR part 572 subpart O 5th percentile adult female test dummy at the right front outboard seating position of the vehicle, in accordance with procedures specified in S16.3.3 of this standard, except as specified in S22.3.1. Do not fasten the seat belt.
S22.3.3 Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and then close all vehicle doors.
S22.3.4 Wait 10 seconds, then check whether the air bag system is activated.
S22.4
S22.4.1 Each vehicle that is certified as complying with S21.4 shall meet the following test requirements with the 49 CFR part 572, subpart P 3-year-old child dummy in both of the following positions: Position 1 (S22.4.2) and Position 2 (S22.4.3).
S22.4.1.1 Locate and mark a point on the front of the dummy's chest jacket on the midsaggital plane which is 114 mm (4.5 in) ± 3 mm (± 0.1 in) along the surface of the skin from the top of the skin at the neck line. This is referred to as “Point 1.”
S22.4.1.2 Locate the vertical plane parallel to the vehicle longitudinal centerline through the geometric center of the opening through which the right front air bag deploys into the occupant compartment. This is referred to as “Plane D.”
S22.4.1.3 Locate the horizontal plane through the geometric center of the opening through which the right front air bag deploys into the occupant compartment. This is referred to as “Plane C.”
S22.4.2
S22.4.2.1 If a seat is adjustable in the fore and aft and/or vertical directions, move the seat to the rear-most seating position and full-down height adjustment. If the seat cushion adjusts fore and aft, independent of the entire seat, adjust the seat cushion to the full-rearward position. If the seat back is adjustable, place the seat back at the manufacturer's nominal design seat back angle for a 50th percentile adult male as specified in S8.1.3 of FMVSS No. 208. Position any adjustable parts of the seat that provide additional support so that they are in the lowest or most open adjustment position. If adjustable, set the head restraint in the lowest position.
S22.4.2.2 Place the dummy in the front passenger seat such that:
S22.4.2.2.1 The midsagittal plane is coincident with Plane D.
S22.4.2.2.2 The legs are initially vertical to the floor pan. The legs and thighs shall be adjusted to the extent necessary for the head/torso to contact the instrument panel as specified in S22.4.2.3.
S22.4.2.2.3 The upper arms are parallel to the torso and the hands are in contact with the thighs.
S22.4.2.3 Without changing the seat position and with the dummy's thorax instrument cavity rear face vertical, move the dummy forward until the dummy head/torso contacts the instrument panel. If the dummy loses contact with the seat cushion because of the forward movement, maintain the height of the dummy and the angle of the thigh with respect to the torso. Once contact is made, raise the dummy vertically until Point 1 lies in Plane C. If the dummy's head contacts the windshield and keeps Point 1 from
S22.4.2.4 If possible, position the legs of the dummy so that the legs are vertical and the feet rest flat on the floor pan of the vehicle. If the positioning against the instrument panel does not allow the feet to be on the floor pan, the feet shall be parallel to the floor pan.
S22.4.2.5 If necessary, material with a maximum breaking strength of 311 N (70 lb) and spacer blocks may be used to support the dummy in position. The material should support the torso rather than the head. Support the dummy so that there is minimum interference with the full rotational and translational freedom for the upper torso of the dummy and the material does not interfere with the air bag.
S22.4.3
S22.4.3.1 Place the passenger seat in the full rearward seating position. Place the seat back at the manufacturer's nominal design seat back angle for a 50th percentile adult male as specified in S8.1.3 of FMVSS No. 208. If adjustable in the vertical direction, place the seat in the mid-height position. If the seat cushion adjusts fore and aft, independent of the entire seat, adjust the seat cushion to the full rearward position. Position any adjustable parts of the seat that provide additional support so that they are in the lowest or most open adjustment position. If adjustable, set the head restraint in the lowest position.
S22.4.3.2 Place the dummy in the front passenger seat such that:
S22.4.3.2.1 The midsagittal plane is coincident with Plane D.
S22.4.3.2.2 The legs are vertical to the floor pan, the back of the legs are in contact with the seat cushion, and the dummy's thorax instrument cavity rear face is vertical. If it is not possible to position the dummy with the legs in the prescribed position, rotate the legs forward until the dummy is resting on the seat with the feet positioned flat on the floor pan, and the back of the legs are in contact with the front of the seat cushion. Set the transverse distance between the longitudinal centerlines at the front of the dummy's knees at 86 to 91 mm (3.4 to 3.6 in), with the thighs and the legs of the dummy in vertical planes.
S22.4.3.2.3 The upper arms are parallel to the torso and the hands are in contact with the thighs.
S22.4.3.3 Move the seat forward, while maintaining the thorax instrument cavity rear face orientation until any part of the dummy contacts the vehicle's instrument panel.
S22.4.3.4 If dummy contact has not been made with the vehicle's instrument panel at the full forward seating position of the seat, slide the dummy forward until contact is made. Maintain the thorax instrument cavity rear face vertical orientation, the height of the dummy, and the angle of the thigh with respect to the horizontal.
S22.4.3.5 If head/torso contact with the instrument panel has not been made, maintain the angle of the thighs with respect to the horizontal while applying a force towards the front of the vehicle on the spine of the dummy between the shoulder joints until the head or torso comes into contact with the vehicle's instrument panel.
S22.4.3.6 If necessary, material with a maximum breaking strength of 311 N (70 lb) and spacer blocks may be used to support the dummy in position. The material should support the torso rather than the head. Support the dummy so that there is minimum interference with the full rotational and translational freedom for the upper torso of the dummy and the material does not interfere with the air bag.
S22.4.4 Deploy the right front outboard frontal air bag system. If the frontal air bag system contains a multistage inflator, the vehicle shall be able to comply with the injury criteria at any stage or combination of stages or time delay between successive stages that could occur in a rigid barrier crash test at or below 26 km/h (16 mph), under the test procedure specified in S22.5.
S22.5
S22.5.1 The test described in S22.5.2 shall be conducted with an unbelted 50th percentile adult male test dummy in the driver seating position according to S8 of FMVSS No. 208 as it applies to that seating position and an unbelted 5th percentile adult female test dummy either in the right front seating position according to S16 as it applies to that seating position or at any fore-aft seat position on the passenger side.
S22.5.2 Impact the vehicle traveling longitudinally forward at any speed, up to and including 26 km/h (16 mph) into a fixed rigid barrier that is perpendicular ± 5 degrees to the line of travel of the vehicle under the applicable conditions of S8 and S10 of FMVSS No. 208, and S16 of this standard excluding S10.7, S10.8 and S10.9 of FMVSS No. 208 and S16.3.5 of this standard.
S22.5.3 Determine which inflation stage or combination of stages are fired and determine the time delay between successive stages. That stage or combination of stages, with time delay between successive stages, shall be used in deploying the air bag when conducting the low risk deployment tests described in S22.4, S24.4, and S26.
S22.5.4 If the air bag does not deploy in the impact described in S22.5.2, the low risk deployment tests described in S22.4, S24.4, and S26 shall be conducted with all stages using the maximum time delay between stages.
S23 [Reserved] See § 571.208, S23.
S24
S24.1
S24.1.1 Tests specifying the use of a booster seat may be conducted using any such restraint listed in section D of Appendix A of FMVSS No. 208. The booster seat may be unused or have been previously used only for automatic suppression. If it has been used, there shall not be any visible damage prior to the test. Booster seats are to be used in the manner appropriate for a 6-year-old child of the same height and weight as the 6-year-old child dummy.
S24.1.2 Unless otherwise specified, each vehicle certified to this option shall comply in tests conducted with the right front outboard seating position at the full rearward seat track position, the middle seat track position, and the full forward seat track position. If the dummy contacts the vehicle interior, move the seat rearward to the next detent that provides clearance. If the seat is a power seat, move the seat rearward while assuring that there is a maximum of 5 mm (0.2 in) distance between the vehicle interior and the point on the dummy that would first contact the vehicle interior. All tests are conducted with the seat height, if adjustable, in the mid-height position, and with the seat back angle, if adjustable, at the manufacturer's nominal design seat back angle for a 50th percentile adult male as specified in S8.1.3 of FMVSS No. 208.
S24.1.3 Except as otherwise specified, if the booster seat has an anchorage system as specified in S5.9 of FMVSS No. 213 and is tested in a vehicle with a right front outboard vehicle seat that has an anchorage system as specified in FMVSS No. 225, the vehicle shall comply with the belted test conditions with the restraint anchorage system attached to the vehicle seat anchorage system and the vehicle seat belt unattached. It shall also
S24.1.4 Do not attach any tethers.
S24.1.5 The definitions provided in S16.3.1 through S16.3.10 apply to the tests specified in S24.
S24.1.6 For leg and thigh angles, use the following references:
S24.1.6.1
S24.1.6.2
S24.2
S24.2.1 Except as provided in S24.2.2, conduct all tests as specified in S22.2, except that the 49 CFR part 572 subpart N 6-year-old child dummy shall be used.
S24.2.2
S24.2.3
(a) Position the dummy in the seated position and place the dummy in the right front outboard seat. For bucket seats, position the midsagittal plane of the dummy vertically such that it coincides with the longitudinal center line of the seat cushion. For bench seats, position the midsagittal plane of the dummy vertically and parallel to the vehicle's longitudinal centerline and the same distance from the longitudinal centerline of the vehicle as the center of the steering wheel.
(b) Place the dummy's back against the seat back and rest the dummy's thighs on the seat cushion.
(c) Allow the legs and feet of the dummy to extend off the surface of the seat. If this positioning of the dummy's legs is prevented by contact with the instrument panel, move the seat rearward to the next detent that provides clearance. If the seat is a power seat, move the seat rearward, while assuring that there is a maximum of 5 mm (0.2 in) distance between the vehicle interior and the part of the dummy that was in contact with the vehicle interior.
(d) Rotate the dummy's upper arms toward the seat back until they make contact.
(e) Rotate the dummy's lower arms down until they contact the seat.
(f) Close the vehicle's passenger-side door and then start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system.
(g) Push against the dummy's left shoulder to lean the dummy against the door; close all remaining doors.
(h) Wait 10 seconds, then check whether the air bag is deactivated.
S24.3 Static tests of automatic suppression feature which shall result in activation of the passenger air bag system.
S24.3.1 Each vehicle certified to this option shall comply in tests conducted with the right front outboard seating position at the full rearward seat track position, the middle seat track position, and, subject to S16.3.3.1.8, the full forward seat track position. All tests are conducted with the seat height, if adjustable, in the mid-height position.
S24.3.2 Place a 49 CFR part 572 subpart O 5th percentile adult female test dummy at the right front outboard seating position of the vehicle, in accordance with procedures specified in S16.3.3 of this standard, except as specified in S24.3.1. Do not fasten the seat belt.
S24.3.3 Start the vehicle engine or place the ignition in the “on” position, whichever will turn on the suppression system, and then close all vehicle doors.
S24.3.4 Wait 10 seconds, then check whether the air bag system is activated.
S24.4
S24.4.1 Each vehicle that is certified as complying with S23.4 of FMVSS No. 208 shall meet the following test requirements with the 49 CFR part 572 subpart N 6-year-old child dummy in both of the following positions: Position 1 (S24.4.2) or Position 2 (S24.4.3).
S24.4.1.1 Locate and mark a point on the front of the dummy's chest jacket on the midsagittal plane which is 139 mm (5.5 in) ± 3 mm (± 0.1 in) along the surface of the skin from the top of the skin at the neckline. This is referred to as “Point 1.”
S24.4.1.2 Locate the vertical plane parallel to the vehicle longitudinal centerline through the geometric center of the opening through which the right front air bag deploys into the occupant compartment. This is referred to as “Plane D.”
S24.4.1.3 Locate the horizontal plane through the geometric center of the opening through which the right front air bag deploys into the occupant compartment. This is referred to as “Plane C.”
S24.4.2
S24.4.2.1 If a seat is adjustable in the fore and aft and/or vertical directions, move the seat to the rearmost seating position and full down height adjustment. If the seat cushion adjusts fore and aft, independent of the entire seat, adjust the seat cushion to the full rearward position. If the seat back is adjustable, place the seat back at the manufacturer's nominal design seat back angle for a 50th percentile adult male as specified in S8.1.3. Position any adjustable parts of the seat that provide additional support so that they are in the lowest or most open adjustment position. Position an adjustable head restraint in the lowest position.
S24.4.2.2 Remove the legs of the dummy at the pelvic interface.
S24.4.2.3 Place the dummy in the front passenger seat such that:
(a) The midsagittal plane is coincident with Plane D.
(b) The upper arms are parallel to the torso and the hands are next to where the thighs would be.
(c) Without changing the seat position and with the dummy's thorax instrument cavity rear face 6 degrees forward of the vertical, move the dummy forward until the dummy head/torso contacts the instrument panel. If the dummy loses contact with the seat cushion because of the forward movement, maintain the height of the dummy while moving the dummy forward. If the head contacts the windshield before head/torso contact with the instrument panel, maintain the thorax instrument cavity angle and move the dummy forward such that the head is following the angle of the windshield until there is head/torso contact with the instrument panel. Once contact is made, raise or lower the dummy vertically until Point 1 lies in Plane C. If the dummy's head contacts the windshield and keeps Point 1 from reaching Plane C, lower the dummy until there is no more than 5 mm (0.2 in) clearance between the head and the windshield. (The dummy shall remain in contact with the instrument panel while being raised or lowered which may change the dummy's fore-aft position.)
S24.4.2.4 If necessary, material with a maximum breaking strength of 311 N
S24.4.3
S24.4.3.1 Place the passenger seat in the full rearward seating position. Place the seat back at the manufacturer's nominal design seat back angle for a 50th percentile adult male as specified in S8.1.3 of FMVSS No. 208. If adjustable in the vertical direction, place the seat in the mid-height position. If the seat cushion adjusts fore and aft, independent of the entire seat, adjust the seat cushion to the full rearward position. Position any adjustable parts of the seat that provide additional support so that they are in the lowest or most open adjustment position. Position an adjustable head restraint in the lowest position.
S24.4.3.2 Place the dummy in the front passenger seat such that:
(a) The midsagittal plane is coincident with Plane D.
(b) The legs are perpendicular to the floor pan, the back of the legs are in contact with the seat cushion, and the dummy's thorax instrument cavity rear face is 6 degrees forward of vertical. If it is not possible to position the dummy with the legs in the prescribed position, rotate the legs forward until the dummy is resting on the seat with the feet positioned flat on the floor pan and the back of the legs are in contact with the front of the seat cushion. Set the transverse distance between the longitudinal centerlines at the front of the dummy's knees at 112 to 117 mm (4.4. to 4.6 in), with the thighs and the legs of the dummy in vertical planes.
(c) The upper arms are parallel to the torso and the hands are in contact with the thighs. S24.4.3.3 Move the seat forward, while maintaining the thorax instrument cavity rear face orientation until any part of the dummy contacts the vehicle's instrument panel.
S24.4.3.4 If dummy contact has not been made with the vehicle's instrument panel at the full forward seating position of the seat, slide the dummy forward on the seat until contact is made. Maintain the thorax instrument cavity rear face orientation, the height of the dummy, and the angle of the thigh with respect to the horizontal.
S24.4.3.5 If head/torso contact has not been made with the instrument panel, maintain the angle of the thighs with respect to the horizontal while applying a force towards the front of the vehicle on the spine of the dummy between the shoulder joints until the head/torso comes into contact with the vehicle's instrument panel.
S24.4.3.6 If necessary, material with a maximum breaking strength of 311 N (70 lb) and spacer blocks may be used to support the dummy in position. Material should support the torso rather than the head. Support the dummy so that there is minimum interference with the full rotational and translational freedom for the upper torso of the dummy and the material does not interfere with the air bag.
S24.4.4 Deploy the right front outboard frontal air bag system. If the frontal air bag system contains a multistage inflator, the vehicle shall be able to comply with the injury criteria at any stage or combination of stages and at any time delay between successive stages that could occur in a rigid barrier crash at speeds up to 26 km/h (16 mph) under the test procedure specified in S22.5.
S25 [Reserved] See § 571.208, S25.
S26
S26.1 Each vehicle that is certified as complying with S25.3 of FMVSS No. 208 shall meet the requirements of S25.3 and S25.4 with the 49 CFR part 572 subpart O 5th percentile adult female dummy in both of the following positions: Driver position 1 (S26.2) and Driver position 2 (S26.3).
S26.2
S26.2.1 Adjust the steering controls so that the steering wheel hub is at the geometric center of the locus it describes when it is moved through its full range of driving positions. If there is no setting at the geometric center, position it one setting lower than the geometric center. Set the rotation of the steering wheel so that the vehicle wheels are pointed straight ahead.
S26.2.2 Locate the vertical plane parallel to the vehicle longitudinal axis which passes through the geometric center of the opening through which the driver air bag deploys into the occupant compartment. This is referred to as “Plane E.”
S26.2.3 Place the seat in the full rearward seating position. If adjustable in the vertical direction, place the seat in the mid-height position. If the seat cushion adjusts fore and aft, independent of the entire seat, adjust the seat cushion to the full rearward position. If the seat back is adjustable, place the seat back at the manufacturer's nominal design seat back angle for a 50th percentile adult male as specified in S8.1.3 of FMVSS No. 208. If the seat cushion contains an independent seat cushion angle adjustment mechanism, adjust the seat cushion angle to the middle of the range of seat cushion angles. Position any adjustable parts of the seat that provide additional support so that they are in the lowest or most open adjustment position. Position an adjustable head restraint in the lowest position.
S26.2.4 Place the dummy in the driver's seat such that:
S26.2.4.1 The midsagittal plane is coincident with Plane E.
S26.2.4.2 The legs are perpendicular to the floor pan and the back of the legs are in contact with the seat cushion. The legs may be adjusted if necessary to achieve the final head position.
S26.2.4.3 The dummy's thorax instrument cavity rear face is 6 degrees forward (toward the front of the vehicle) of the steering wheel angle (
S26.2.4.4 The initial transverse distance between the longitudinal centerlines at the front of the dummy's knees is 160 to 170 mm (6.3 to 6.7 in), with the thighs and legs of the dummy in vertical planes.
S26.2.4.5 The upper arms are parallel to the torso and the hands are in contact with the thighs.
S26.2.5 Maintaining the spine angle, slide the dummy forward until the head/torso contacts the steering wheel.
S26.2.6 While maintaining the spine angle, adjust the height of the dummy so that the bottom of the chin is in the same horizontal plane as the highest point of the air bag module cover (dummy height can be adjusted using the seat height adjustments and/or spacer blocks). If the seat prevents the bottom of the chin from being in the same horizontal plane as the module cover, adjust the dummy height to as close to the prescribed position as possible.
S26.2.7 If necessary, material with a maximum breaking strength of 311 N (70 lb) and spacer blocks may be used to support the dummy in position. The material should support the torso rather than the head. Support the dummy so that there is minimum interference with the full rotational and translational freedom for the upper torso of the dummy and the material does not interfere with the air bag.
S26.3
S26.3.1 Place the seat in the full rearward seating position. If adjustable in the vertical direction, place the seat in the mid-height position. If the seat
S26.3.2 Adjust the steering controls so that the steering wheel hub is at the geometric center of the locus it describes when it is moved through its full range of driving positions. If there is no setting at the geometric center, position it one setting lower than the geometric center. Set the rotation of the steering wheel so that the vehicle wheels are pointed straight ahead.
S26.3.3 Locate the vertical plane parallel to the vehicle longitudinal axis which passes through the geometric center of the opening through which the driver air bag deploys into the occupant compartment. This is referred to as “Plane E.”
S26.3.4 Place the dummy in the driver's seat position such that:
S26.3.4.1 The midsagittal plane is coincident with Plane E.
S26.3.4.2 The legs are perpendicular to the floor pan and the back of the legs are in contact with the seat cushion. The legs may be adjusted if necessary to achieve the final head position.
S26.3.4.3 The dummy's thorax instrument cavity rear face is 6 degrees forward (toward the front of the vehicle) of the steering wheel angle (
S26.3.4.4 The initial transverse distance between the longitudinal centerlines at the front of the dummy's knees is 160 to 170 mm (6.3 to 6.7 in), with the thighs and legs of the dummy in vertical planes.
S26.3.4.5 The upper arms are parallel to the torso and the hands are in contact with the thighs.
S26.3.5 Maintaining the spine angle, slide the dummy forward until the head/torso contacts the steering wheel.
S26.3.6 While maintaining the spine angle, position the dummy so that a point on the chin 40 mm below the center of the mouth (chin point) is in contact with the rim of the uppermost portion of the steering wheel. If the dummy's head contacts the vehicle windshield or upper interior before the prescribed position can be obtained, lower the dummy until there is no more than 5 mm (0.2 in) clearance between the vehicle's windshield or upper interior, as applicable.
S26.3.7 If the steering wheel can be adjusted so that the chin point can be in contact with the rim of the uppermost portion of the steering wheel, adjust the steering wheel to that position and readjust the spine angle to coincide with the steering wheel angle. Position the dummy so that the chin point is in contact with the rim of the uppermost portion of the steering wheel.
S26.3.8 If necessary, material with a maximum breaking strength of 311 N (70 lb) and spacer blocks may be used to support the dummy in position. The material should support the torso rather than the head. Support the dummy so that there is minimum interference with the full rotational and translational freedom for the upper torso of the dummy and the material does not interfere with the air bag.
S26.4 Deploy the left front outboard frontal air bag system. If the air bag system contains a multistage inflator, the vehicle shall be able to comply with the injury criteria at any stage or combination of stages or time delay between successive stages that could occur in a rigid barrier crash at speeds up to 26 km/h (16 mph) under the test procedure specified in S22.5.
S27 through S29 [Reserved]
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure.
NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the first seasonal allowance of the pollock interim total allowable catch (TAC) for Statistical Area 610 of the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), January 22, 2004, until superseded by the notice of Final 2004 Harvest Specifications of Groundfish for the GOA, which will be published in the
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The first seasonal allowance of the pollock interim TAC in Statistical Area 610 of the GOA is 2,894 metric tons (mt) as established by the interim 2004 harvest specifications for groundfish of the GOA (68 FR 67964, December 5, 2003).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the first seasonal allowance of the pollock interim TAC in Statistical Area 610 will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,694 mt, and is setting aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA.
Maximum retainable amounts may be found in the regulations at § 679.20(e) and (f).
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by section 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule would amend the procedures for soybean producers to request a referendum on the Soybean Promotion and Research Order (Order), as authorized under the Soybean Promotion, Research, and Consumer Information Act (Act). The changes are intended to improve the operation of these procedures. The Act provides that the Department of Agriculture (USDA), 5 years after the conduct of the initial referendum and every 5 years thereafter, will give soybean producers the opportunity to request an additional referendum on the Order. Individual producers and other producer entities would be provided the opportunity to request a referendum during a specified period announced by USDA, at the county Farm Service Agency (FSA) office where FSA maintains and processes the producer's administrative farm records. For the producer not participating in FSA programs, the opportunity to request a referendum would be provided at the county FSA office serving the county where the producer owns or rents land. If at least 10 percent of U.S. soybean producers (not in excess of one-fifth of which may be producers in any one State) support the conduct of a referendum, a referendum must be conducted within 1 year of that determination.
Written comments must be received by February 17, 2004.
Send comments to Kenneth R. Payne, Chief; Marketing Programs Branch; Livestock and Seed Program; Agricultural Marketing Service (AMS), USDA, Room 2638-S; STOP 0251; 1400 Independence Avenue, SW., Washington, DC 20250-0251. Comments may also be sent electronically to
Kenneth R. Payne, Chief, Marketing Programs Branch on (202) 720-1115, fax (202) 720-1125, or by e-mail at
Producers can determine the location of county FSA offices by contacting (1) the nearest county FSA office, (2) the State FSA office, or (3) through an online search of FSA's Web site at
The Office of Management and Budget (OMB) has waived the review process required by Executive Order 12866 for this action.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposal is not intended to have a retroactive effect. This proposed rule would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 1971 of the Act, a person subject to the Order may file a petition with USDA 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 and requesting a modification of the Order or an exemption from the Order. The petitioner is afforded the opportunity for a hearing on the petition. After a hearing, USDA would rule on the petition. The Act provides that the district courts of the United States in any district in which such person is an inhabitant, or has their principal place of business, has jurisdiction to review USDA's ruling on the petition, if a complaint for this purpose is filed within 20 days after the date of the entry of the ruling.
Further, section 1974 of the Act provides, with certain exceptions, that nothing in the Act may be construed to preempt or supersede any other program relating to soybean promotion, research, consumer information, or industry information organized and operated under the laws of the United States or any State. One exception in the Act concerns assessments collected by Qualified State Soybean Boards (QSSBs). The exception provides that to ensure adequate funding of the operations of QSSBs under the Act, no State law or regulation may limit or have the effect of limiting the full amount of assessments that a QSSB in that State may collect, and which is authorized to be credited under the Act. Another exception concerns certain referenda conducted during specified periods by a State relating to the continuation or termination of a QSSB or State soybean assessment.
The Agricultural Marketing Service has determined that this proposed rule will not have a significant impact on a substantial number of small entities as defined by the Regulatory Flexibility Act (RFA) (5 United States Code (U.S.C.) 601
For the purposes of the Request for Referendum, the Secretary would use the most recent number of soybean producers identified by USDA's FSA. The latest number of soybean producers identified by FSA was obtained by averaging the number of soybeans producers for crop years 2001 (597,151) and 2002 (573,825). Therefore, the
This proposed rule would revise the current procedures for soybean producers to request a referendum on the Order. The proposed changes affect a number of sections in subpart F of part 1220, and include requiring documentation with form LS-51-1 to demonstrate that the producer or producer entity paid soybean assessments. Other changes are intended to improve the operation of the procedures. The procedures to request a referendum on the Soybean Checkoff Program would permit all eligible producers who have been engaged in the production of soybeans or soybean products, during a representative period, to participate.
The information collection requirements, as discussed below, are minimal. Requesting a form by mail, in-person, facsimile, or via the Internet would not impose a significant economic burden on participants. Accordingly, the Administrator of AMS has determined that this proposed rule will not have a significant economic impact on a substantial number of small business entities.
In accordance with the Paperwork Reduction Act of 1990 (44 U.S.C. Chapter 35), the reporting and recordkeeping requirements included in 7 CFR part 1220 were previously approved by OMB and were assigned OMB control number 0581-0093. The purpose of this proposed rule is to provide soybean producers the opportunity to request a referendum on the Order. The proposed changes would affect the information collection requirements by requiring documentation to be provided with form LS-51-1. However, providing the documentation will have no significant impact on the approved per response burden for form LS-51-1.
The Act (7 U.S.C. 6301-6311) provides for the establishment of a coordinated program of promotion and research designed to strengthen the soybean industry's position in the marketplace, and to maintain and expand domestic and foreign markets and uses for soybeans and soybean products. The program is financed by an assessment of 0.5 of 1 percent of the net market price of soybeans sold by producers. The final Order establishing a Soybean Promotion, Research, and Consumer Information program was published in the July 9, 1991, issue of the
The Act required that an initial referendum be conducted no earlier than 18 months and not later than 36 months after the issuance of the Order to determine whether the Order should be continued.
The initial referendum was conducted on February 9, 1994. On April 1, 1994, the Secretary announced that of the 85,606 valid ballots cast, 46,060 (53.8 percent) were in favor of continuing the Order and the remaining 39,546 votes (46.2 percent) were against continuing the Order. The Act required approval by a simple majority for the Order to continue.
The Act also required that within 18 months after the Secretary announced the results of the initial referendum, the Secretary would conduct a poll among producers to determine if producers favored a referendum on the continuance of the payment of refunds under the Order.
A July 25, 1995, nationwide poll of soybean producers did not generate sufficient support for a refund referendum to be held. A refund referendum would have been held if at least 20 percent (not in excess of one-fifth of which may be producers in any one State) of the 381,000 producers (76,200) nationwide requested it. Only 48,782 soybean producers participated in the poll. Consequently, refunds were discontinued on October 1, 1995.
The Act also specifies that the Secretary shall, 5 years after the conduct of the initial referendum and every 5 years thereafter, provide soybean producers an opportunity to request a referendum on the Order. On October 1, 1999, through November 16, 1999, a nationwide request for a referendum on the Order was conducted to determine if there was sufficient interest among soybean producers to vote on whether to continue the Soybean Checkoff Program. If at least 10 percent of the 600,813 soybean producers nationwide (not in excess of one-fifth of which may be producers in any one State) participated in the request for referendum, a referendum would have been held. Only 17,970 eligible soybean producers completed valid requests—far short of the 60,082 required to trigger a referendum.
For all such referendums, if the Secretary determines that at least 10 percent of U.S. producers engaged in growing soybeans (not in excess of one-fifth of which may be producers in any one State) support the conduct of a referendum, the Secretary must conduct a referendum within 1 year of that determination. If these requirements are not met, no referendum would be conducted.
For the purposes of the Request for Referendum, USDA determined that they would use the most recent data of soybean producers identified by USDA's FSA. The latest number of soybean producers identified by FSA was 597,151 soybeans producers for crop year 2001 and 573,825 soybean producers for crop year 2002. The information for crop years 2001 and 2002 are based on acreage reports compiled by FSA on a daily basis. Using the last two crop years would help ensure that all eligible producers were counted. Since some producers use soybeans in rotation with other crops and do not plant soybeans every year or the market for some producers in a particular crop year may not have been conducive for growing soybeans, averaging two crop years would help ensure that all eligible producers were counted.
In an effort to follow procedures similar to determining the number of soybean producers for the Request for Referendum that was conducted in 1999, USDA averaged the number of soybean producers for crop years 2001 and 2002, which averages 585,488 soybean producers. Therefore, USDA has determined that the number of soybean producers who would be eligible to participate in the Request for Referendum would be 585,488.
The Act provides that producers shall have an opportunity to request a referendum during a period established by the Secretary. Eligible persons must certify on an official form that they were engaged in the growing of soybeans during a representative period specified by the Secretary, and indicate that they favor the conduct of a referendum. Further, producers would be required to provide documentation, such as sales receipts, showing that an assessment was paid during the representative period. USDA proposes that the Request for Referendum period would be a 4-week period announced by the Secretary and that the representative period for which a producer was engaged in the growing of soybeans would be January 1, 2001, to December 31, 2003. The Act also provides that a Request for Referendum may be made in person or by mail-in request at county
The proposed rule sets forth revised procedures for producers to request a referendum as authorized under the Act, including definitions, eligibility, certification and request procedures, reporting results, and disposition of the forms and records. FSA would coordinate State and county FSA roles in conducting the Request for Referendum by (1) determining producer eligibility, (2) canvassing and counting requests, and (3) reporting the results.
The following are the proposed revisions to the Order, subpart F, “Procedures to Request a Referendum.” We believe that publishing the entire subpart F of the Order would be easier for commenters to review than only publishing the parts that were revised.
Sections 1220.600 through 1220.615 are revised by removing the phrase “the term” from all of the definitions. In addition, the definition for “Department” was deleted; however, it is defined in subpart A, which applies to all subparts of the Order. Definitions for “Farm Service Agency State Committee” and “Farm Service Agency State Executive Director” were also added.
Section 1220.616, the number of soybean producers was revised from 600,813 to 585,488.
Section 1220.618, “Eligibility,” is revised by requesting producers to provide evidence that they or the producer entity that they represent has paid the soybean assessment during the representative period.
Section 1220.619, “Time and place for requesting a referendum,” added two paragraphs to assist persons in locating FSA county offices and determining which FSA county office to vote.
Section 1220.620, “Facilities,” explains the type of facilities that FSA is to provide to persons voting in the request for referendum.
Section 1220.622, “Certification and request procedures,” clarified the procedures in requesting a referendum in terms of completing form LS-51-1, providing documentation that the soybean assessment was paid during the representative period, how to obtain forms by mail, facsimile, or via the Internet, and how to return the form and documentation.
Current procedures provide that FSA county offices list and post the names of producers that request a referendum. Any person could challenge a producer or producer entity's eligibility. Instead, USDA is proposing that producers and producer entities provide documentation that they paid the soybean assessment when they complete form LS-51-1. FSA will then determine whether the producer is eligible, based on the documentation submitted by the producer or producer entity. If FSA cannot determine the person's eligibility or if the person failed to submit the documentation, then FSA shall notify ineligible persons in writing. Persons declared ineligible by FSA have the opportunity to provide additional documentation and will then be notified by FSA of their eligibility.
Section 1220.623, “Canvassing requests,” explains that county FSA offices are to start canvassing form LS-51-1 on the 5th business day following the Request for Referendum period. It also explains who and how the canvassing is to be conducted.
Section 1220.624, “Confidentiality,” was added to not divulge names of persons requesting a referendum.
The remainder of the proposed Request for Referendum procedures is similar to the 1999 Request for Referendum procedures, as well as, counting and reporting the results from FSA county offices to FSA State offices to the FSA Administrator to the AMS Administrator, and ultimately announcing the results in a press release and in the
A 20-day comment period is provided for interested persons to comment on this proposed rule. This comment period is deemed appropriate because the Act provides that the Secretary, 5 years after the conduct of the initial referendum, will give soybean producers the opportunity to request additional referenda on the Order. A 20-day comment period will assist in timely implementation of this rule consistent with the provisions of the Act.
Administrative practice and procedure, Advertising, Agricultural research, Marketing agreements, Soybeans and soybean products, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, it is proposed that title 7, part 1220 be amended as follows:
1. The authority citation for 7 CFR part 1220 continues to read as follows:
7 U.S.C. 6301-6311.
2. Subpart F is revised to read as follows:
An opportunity to request a referendum shall be provided to U.S. soybean producers to determine whether eligible producers favor the conduct of a referendum and the Request for Referendum shall be carried out in accordance with this subpart.
(a) The opportunity to request a referendum shall be provided at the county FSA offices.
(b) If the Secretary determines, based on results of the Request for Referendum that no less than 10 percent (not in excess of one-fifth of which may be producers in any one State) of all producers have requested a referendum on the Order, a referendum would be held within 1 year of that determination.
(c) If the Secretary determines, based on the results of the Request for Referendum, that the requirements in paragraph (b) of this section were not met, a referendum would not be conducted.
(d) For purposes of paragraphs (b) and (c) of this section, the number of soybean producers in the United States is determined to be 585,488.
The Administrator, AMS, shall be responsible for supervising the process of permitting producers to request a referendum in accordance with this subpart.
(a)
(b)
(c)
(a) The opportunity to request a referendum shall be provided during a 4-week period beginning and ending on a date determined by the Secretary. Eligible persons shall have the opportunity to request a referendum by following the procedures in § 1220.622
(b) Producers can determine the location of county FSA offices by contacting the nearest county FSA office, the State FSA office or through an online search of FSA's Web site at
(c) Each eligible person shall vote in the county FSA office where FSA maintains and processes the producer's, corporation's, or other entities administrative farm records. For the producer, corporation, or other entity not participating in FSA programs, the opportunity to request a referendum would be provided at the county FSA office serving the county where the producer, corporation, or other legal entity owns or rents land. An individual or authorized representative of a corporation who grows soybeans in more than one county would request a referendum in the county FSA office where the individual or corporation or other entity does most of its business.
Each county FSA office will provide:
(a) A polling place that is well known and readily accessible to producers in the county and that is equipped and arranged so that each person can complete and submit their request in secret without coercion, duress, or interference of any sort whatsoever, and
(b) A holding container of sufficient size so arranged that no request can be read or removed without breaking seals on the container.
Form LS-51-1 shall be used to request a referendum and certify producer eligibility. The form does not require a “yes” or “no” vote. Individual producers and representatives of other producer entities should read the form carefully. By completing and signing the form, the individual simultaneously certifies eligibility and requests that a referendum be conducted.
(a) To request that a referendum be conducted, each eligible producer shall, during the Request for Referendum period, be provided the opportunity to request a referendum during a specified period announced by the Secretary.
(1) Each eligible producer shall be required to complete form LS-51-1 in its entirety and sign it. The producer must legibly print his/her name and, if applicable, the producer entity represented, address, county, and telephone number. The producer must read the certification statement on form LS-51-1 and sign it certifying that:
(i) The person or the producer entity they represent was a producer of soybeans during the representative period;
(ii) The individual requesting a referendum on behalf of a corporation or other entity is authorized to do so; and
(iii) The individual has submitted only one request for a referendum unless they are also an authorized representative for another eligible corporation or other entity.
(2) The producer, corporation, or other entity must also provide documentation, such as a sales receipt, showing that the producer, corporation, or other entity has paid assessments on soybeans during the representative period.
(3) Only a completed and signed form LS-51-1 accompanied by documentation showing that soybean assessments were paid during the representative period shall be considered a valid request for a referendum.
(b) To request a referendum, eligible producers may obtain form LS-51-1 in-person, by mail, or by facsimile during the request for referendum period from the county FSA office where FSA maintains and processes the producer's, corporation's, or other entity's administrative farm records. For the producer, corporation, or other entity not participating in FSA programs, the opportunity to request a referendum would be provided at the county FSA office serving the county where the producer, corporation, or other entity owns or rents land. Eligible producers may also obtain form LS-51-1 via the Internet at
(c) Producers or producer entities may return form LS-51-1 and the accompanying documentation in-person, by mail, or facsimile as provided in paragraph (a) of this section. Form LS-51-1 returned in-person or by facsimile, must be received in the appropriate county FSA office prior to the close of the work day on the final day of the Request for Referendum period to be considered a valid request. Forms LS-51-1 and the accompanying documentation returned by mail must be postmarked no later than midnight of the final day of the Request for Referendum period and must be received in the county FSA office prior to the start of canvassing the ballots.
(d) Producers who obtain form LS-51-1 in-person at the appropriate FSA county office may complete and return the form the same day, accompanied by documentation, such as a sales receipt, showing that soybean assessments were paid during the representative period.
(a) Canvassing of form LS-51-1 shall take place at the opening of county FSA offices on the 5th business day following the Request for Referendum period. Such canvassing, acting on behalf of the Administrator, AMS, shall be in the presence of at least two members of the county committee. If two or more of the counties have been combined and are served by one county office, the canvassing of the requests shall be conducted by at least one member of the county committee from each county served by the county office. The FSA State committee or the State Executive Director if authorized by the State Committee, may designate the County Executive Director (CED) and a county or State FSA office employee to canvass the requests and report the results instead of two members of the county committee when it is determined that the number of eligible voters is so limited that having two members of the county committee present for this function is impractical, and designate the CED and/or another county or State FSA office employee to canvass requests in any emergency situation precluding at least two members of the county committee from being present to carry out the functions required in this section.
(b) The request for referendum should be canvassed as follows:
(1)
(2)
(c)
(d)
(e)
(1) Form LS-51-1 is not signed or all required information has not been provided;
(2) Form LS-51-1 returned in-person or by facsimile was not received by the last business day of the Request for Referendum period;
(3) Form LS-51-1 returned by mail was not postmarked by midnight of the final day of the Request for Referendum period;
(4) Form LS-51-1 returned by mail was not received in the county FSA office prior to canvassing of the ballots;
(5) Form LS-51-1 is mutilated or marked in such a way that any required information on the form is illegible; or
(6) Form LS-51-1 not returned to the appropriate county FSA office.
The names of persons requesting a referendum shall be confidential and may not be divulged except as the Secretary may direct.
(a) The requests for a referendum shall be counted by county FSA offices on the same day as the requests are canvassed if there are no ineligibility determinations to resolve. For those county FSA offices that do have ineligibility determinations, the requests shall be counted no later than the 14th business day following the final day of the Request for Referendum period.
(b) Requests for a referendum shall be counted as follows:
(1) Total number of producers who returned a Request for Referendum form LS-51-1;
(2) Number of ineligible producers requesting a referendum;
(3) Number of eligible producers requesting a referendum;
(4) Number of valid requests for a referendum; and
(5) Number of invalid requests for a referendum.
The county FSA office report shall be certified as accurate and complete by the CED or designee, acting on behalf of the Administrator, AMS, as soon as may be reasonably possible, but in no event later than 18th business day following the final day of the specified period, have prepared and certified the county summary of requests on a form provided by the Administrator, FSA. Each county FSA office shall transmit the results in its county to the FSA State office. The results in each county may be made available to the public upon notification by the Administrator, FSA, that the final results have been released by the Secretary. A copy of the report shall be posted for 30 days following the date of notification by the Administrator, FSA, in the county FSA office in a conspicuous place accessible to the public. One copy shall be kept on file in the county FSA office for a period of at least 12 months after notification by FSA that the final results have been released by the Secretary.
Each FSA State office shall transmit to the Administrator, FSA, as soon as possible, but in no event later than the 20th business day following the final day of the Request for Referendum period, a report summarizing the data contained in each of the reports from the county FSA offices. One copy of the State summary shall be filed for a period of not less than 12 months after the results have been released and available for public inspection after the results have been released.
(a) The Administrator, FSA, shall submit to the Administrator, AMS, the reports from all State FSA offices. The Administrator, AMS, shall tabulate the results of the Request for Referendum. USDA will issue an official press release announcing the results of the Request for Referendum and publish the same results in the
(b) If the Secretary deems necessary, a State report or county report shall be reexamined and checked by such persons who may be designated by the Secretary.
Each FSA CED will place in sealed containers marked with the identification of the “Request for Soybean Referendum,” all of the form LS-51-1's along with the accompanying documentation and county summaries. Such records will be placed in a secure location under the custody of the FSA CED for a period of not less than 12 months after the date of notification by the Administrator, FSA, that the final results have been announced by the Secretary. If the county FSA office receives no notice to the contrary from the Administrator, FSA, by the end of the 12 month period as described above, the CED or designee shall destroy the records.
The Administrator, AMS, is authorized to prescribe additional instructions and forms not inconsistent with the provisions of this subpart.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes to revise an existing airworthiness directive (AD) for Agusta S.p.A. (Agusta) Model A109C, A109E, and A109K2 helicopters. That AD currently requires inspecting the main rotor blade (blade) tip cap for bonding separation and a crack, and also requires a tap inspection of the tip cap for bonding separation in the blade bond area and a dye penetrant inspection of the tip cap leading edge along the welded joint line
Comments must be received by March 29, 2004.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Office of the Regional Counsel, Southwest Region, Attention: Rules Docket No. 2001-SW-15-AD, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137. You may also send comments electronically to the Rules Docket at the following address:
Richard Monschke, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Rotorcraft Standards Staff, Fort Worth, Texas 76193-0110, telephone (817) 222-5116, fax (817) 222-5961.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this notice may be changed in light of the comments received.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this proposal must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2001-SW-15-AD.” The postcard will be date stamped and returned to the commenter.
On December 19, 2000, Agusta issued Alert Bollettino Tecnico Nos. 109-106, 109K-22, and 109EP-1, all Revision B, which specified inspecting for debond and cracks at the tip cap of blades, P/N 709-0103-01, all dash numbers, through serial numbers 1428 with a prefix of “A5” or “EM”.
The Ente Nazionale per l'Aviazionne Civile (ENAC), the airworthiness authority for Italy, classified these technical bulletins as mandatory and issued AD Nos. 2000-571, 2000-572, and 2000-573, all dated December 22, 2000, requiring an inspection of the tip cap of blades for disbonds or cracks on the specified Agusta Model A109C, A109E, and A109K2 helicopters.
These helicopter models are manufactured in Italy and are type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral agreement, ENAC has kept the FAA informed of the situation described above. The FAA has examined the findings of ENAC, reviewed all available information, and determined that AD action is necessary for products of these type designs that are certificated for operation in the United States.
On November 21, 2001, the FAA issued AD 2001-24-07, Amendment 39-12523 (66 FR 60144, December 3, 2001), which superseded AD 98-19-04, Amendment 39-11039, Docket No. 98-SW-40-AD. AD 98-19-04 required inspecting between the metal shells and honeycomb core for bonding separation, visually inspecting the blade tip for swelling or deformation, and visually inspecting the welded bead along the leading edge of the blade tip cap for a crack. AD 2001-24-07 retained those requirements, and added a requirement for a tap inspection of the tip cap for bonding separation in the blade bond area, and a dye penetrant inspection of the tip cap leading edge along the welded joint line of the upper and lower tip cap skin shells for a crack. Installing a tip cap, P/N 709-0103-29-109, on an affected blade is a terminating action for the requirements of the existing AD for that blade. That action was prompted by three occurrences in which the blade tip cap leading edge opened in flight due to cracks, resulting in excessive helicopter vibration. That condition, if not corrected, could result in failure of a blade tip cap, excessive vibration, and subsequent loss of control of the helicopter.
Since issuing AD 2001-24-07, we discovered that a blade P/N was incorrectly stated in the Applicability section of the AD. P/N 709-0130-01-all dash numbers should have been stated as P/N 709-0103-01-all dash numbers.
The previously described unsafe condition is likely to exist or develop on other helicopters of these same type designs. Therefore, the proposed AD would revise AD 2001-24-07 to correct the P/N and to continue to require:
• A tap inspection of the upper and lower sides of the tip cap for bonding separation and in the tip cap to blade bond area;
• A visual inspection of the upper and lower side of the blade tip cap for swelling or deformation; and
• A dye penetrant inspection of the tip cap leading edge along the welded joint line of the upper and lower tip cap skin shells for a crack.
The FAA estimates that this proposed AD would affect 44 helicopters of U.S. registry, and the proposed actions would take approximately 6 work hours per helicopter to accomplish the initial and repetitive inspection at an average labor rate of $65 per work hour. Based on these figures, we estimate the total cost impact of the proposed AD on U.S. operators to be $17,160, assuming that no blade will need to be replaced as a result of these inspections.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by removing Amendment 39-12523 (66 FR 60144), and by adding a new airworthiness directive (AD), to read as follows:
To prevent failure of a blade tip cap, excessive vibration, and subsequent loss of control of the helicopter, accomplish the following:
(a) Tap inspect the upper and lower sides of each tip cap for bonding separation between the metal shells and the honeycomb core using a steel hammer, P/N 109-3101-58-1, or a coin (quarter) in the area indicated as honeycomb core on Figure 1 of Alert Bollettino Tecnico Nos. 109-106, 109K-22, or 109EP-1, all Revision B, and dated December 19, 2000 (ABT), as applicable. Also, tap inspect for bonding separation in the tip cap to blade bond area (no bonding voids are permitted in this area).
(b) Visually inspect the upper and lower sides of each blade tip cap for swelling or deformation.
(c) Dye-penetrant inspect the tip cap leading edge along the welded joint line of the upper and lower tip cap skin shells for a crack in accordance with the Compliance Instructions, paragraph 3, of the applicable ABT.
(d) If any swelling, deformation, crack, or bonding separation that exceeds the prescribed limits in the applicable maintenance manual is found, replace the blade with an airworthy blade.
(e) Replacement blades affected by this AD must comply with the repetitive inspection requirements of this AD. Replacing an affected blade with a blade having an airworthy blade tip cap, P/N 709-0103-29-109, is terminating action for the requirements of this AD for that blade.
(f) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Contact the Safety Management Office, Rotorcraft Directorate, FAA, for information about previously approved alternative methods of compliance.
The subject of this AD is addressed in Ente Nazionale per l'Aviazionne Civile (Italy) AD Nos. 2000-571, 2000-572, and 2000-573, all dated December 22, 2000.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Dornier Model 328-100 series airplanes. This proposal would require repetitive inspections of certain support arms of the ground spoiler assemblies for cracking, and replacement of any ground spoiler assembly having cracking with a new ground spoiler assembly. This proposal would also require certain inspections for discrepancies of the ground spoiler assemblies and the flap of each wing; and corrective actions if necessary. This action is necessary to prevent failure of the support arms due to cracking, which could result in loss of function and/or separation of the affected ground spoiler assemblies from the airplane, and consequent reduced controllability of the airplane during landing or rejected take-off operations. This action is intended to address the identified unsafe condition.
Comments must be received by February 26, 2004.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-30AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from AvCraft Aerospace GmbH, P.O. Box 1103, D-82230 Wessling, Germany. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2125; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-300-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-300-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, notified the FAA that an unsafe condition may exist on certain Dornier Model 328-100 series airplanes. The LBA advises that cracking has been found in support arms No. 3 and No. 8 on ground spoiler assemblies No. 1 and No. 2, part numbers 001B577A1000 and 001B577A1100. The cracking is caused by higher loads placed on the support arms as a result of insufficient clearance between the bottom of the trailing edges of the ground spoilers and the upper surfaces of the wing flaps. This condition, if not corrected, could result in loss of function and/or separation of the affected ground spoiler assemblies from the airplane, and consequent reduced controllability of the airplane during landing or rejected take-off operations.
Dornier has issued Service Bulletin SB-328-57-435, Revision 1, dated August 7, 2002, which describes procedures for repetitive eddy current inspections to detect cracking in the bottom edge of the flange for ground spoiler support arms No. 3 and No. 8 of ground spoiler assemblies No. 1 and No. 2, part numbers 001B577A1000 and 001B577A1100, left and right sides of the airplane; and replacement of any ground spoiler assembly having cracking with a new ground spoiler assembly.
Dornier has also issued Service Bulletin SB-328-57-439, Revision 1, dated March 10, 2003, which describes procedures for a visual inspection, contour inspection, and clearance inspection of the ground spoilers and the flap of each wing for discrepancies, and corrective action if necessary. The service bulletin includes the following:
• Procedures for a visual inspection of the flap protection strip for chafing marks, reporting inspection results to the manufacturer, and inspecting the bottom surface of the ground spoiler and the mating upper surface of the flap of each wing for surface damage (chafing marks or paint damage), and repair if necessary. If abnormal chafing marks are found, the service bulletin recommends doing the inspection of the spoiler arms per Dornier Service Bulletin SB-328-57-435, Revision 1, dated August 7, 2002.
• Procedures for a contour inspection of the ground spoiler and the flap of each wing to determine if they are within the specified tolerances, adjusting the ground spoiler actuator if out of tolerance, and reporting the inspection results to the manufacturer.
• Procedures for a clearance inspection between the bottom of the trailing edge of the ground spoiler and the upper surface of the flap of each wing. If there is a notable deflection (spring back effect) between the ground spoiler and the surface, the service bulletin recommends reporting the inspection results to the manufacturer. If there is no notable deflection (spring back effect) between the ground spoiler and the surface, the service bulletin recommends adjusting the ground spoiler actuator and repeating the clearance inspection.
Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition. The LBA classified these service bulletins as mandatory and issued German airworthiness directives 2002-258, dated September 5, 2002, and 2003-357, dated November 11, 2003, to ensure the continued airworthiness of these airplanes in Germany.
This airplane model is manufactured in Germany and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the LBA has kept us informed of the situation described above. We have examined the findings of the LBA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletins described previously, except as discussed below.
Operators should note that Service Bulletin SB-328-57-439, Revision 1, dated March 10, 2003, recommends doing the actions in the service bulletin “as soon as possible or at the latest at the next A-check or equivalent.” German airworthiness directive 2003-357, dated November 11, 2003, recommends doing the actions “at latest at the next A-Check or equivalent.” Because “A-check” schedules vary among operators, this proposed AD would require accomplishment of the actions within 400 flight cycles after the effective date of this proposed AD, and accomplishment of any required corrective action before further flight. We find that compliance of within 400 flight cycles after the effective date of this proposed AD is appropriate for affected airplanes to continue to operate without compromising safety.
Service Bulletin SB-328-57-435, Revision 1, states to contact Dornier if any crack is found in a support arm for a ground spoiler, and to send the affected ground spoiler to Dornier, but those actions are not required by this proposed AD. Service Bulletin SB-328-57-439, Revision 1, also recommends that inspection results for cracking of support arms be sent to Dornier, but that action is not required by this proposed AD.
Service Bulletin SB-328-57-435, Revision 1, specifies that if a crack is found in a support arm of a ground spoiler during any inspection, the ground spoiler should be replaced with a new ground spoiler. However, the service bulletin does not include procedures for replacing the ground spoiler. This proposed AD specifies that any ground spoiler replacement should be done per the applicable section(s) of chapters 27 or 57 of the maintenance manual.
We estimate that 53 airplanes of U.S. registry would be affected by this proposed AD.
It would take approximately 2 work hours per airplane to accomplish the proposed general visual, contour, and clearance inspections of the ground spoilers, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of these proposed inspections on U.S. operators is estimated to be $6,890, or $130 per airplane.
It would take approximately 4 work hours per airplane to accomplish the proposed inspection of the support arms for the ground spoilers, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of this proposed inspection on U.S. operators is estimated to be $13,780, or $260 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
To prevent failure of the support arms of the ground spoiler assemblies due to cracking, which could result in loss of function and/or separation of the affected ground spoiler assemblies from the airplane, and consequent reduced controllability of the airplane during landing or rejected take-off operations, accomplish the following:
(a) Within 400 flight cycles after the effective date of this AD: Do the inspections for discrepancies of the ground spoiler assemblies and the wing flaps by doing all the actions per the Accomplishment Instructions of Dornier Service Bulletin SB-328-57-439, Revision 1, dated March 10, 2003. Any applicable corrective action must be done before further flight per the service bulletin.
For the purposes of this AD, a general visual inspection is defined as: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to enhance visual access to all exposed surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(b) Within 4 weeks after the effective date of this AD, or prior to the accumulation of 4,000 total flight cycles, whichever is later: Do an eddy current inspection for cracking in the bottom edge of the flange for ground spoiler support arms No. 3 and No. 8, left and right sides of the airplane. Do the inspection by accomplishing all of the actions per the Accomplishment Instructions of Dornier Service Bulletin SB-328-57-435, Revision 1, dated August 7, 2002. Repeat the inspection thereafter at intervals not to exceed 1,000 flight cycles.
(c) If any cracking is found during any inspection required by paragraph (b) of this AD, before further flight, replace the affected ground spoiler assembly with a new ground spoiler assembly per the applicable section(s) of chapters 27 or 57 of the Dornier Model 328-100 Maintenance Manual.
(d) Dornier Service Bulletin SB-328-57-435, Revision 1, dated August 7, 2002, states to contact Dornier if any crack is found in a support arm for a ground spoiler, and to send the affected ground spoiler to Dornier, but those actions are not required by this AD. Dornier Service Bulletin SB-328-57-439, Revision 1, dated March 10, 2003, recommends that inspection results for cracking of support arms be sent to Dornier, but that action is not required by this AD.
(e) In accordance with 14 CFR 39.19, the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, is authorized to approve alternative methods of compliance for this AD.
The subject of this AD is addressed in German airworthiness directives 2002-258, dated September 5, 2002, and 2003-357, dated November 11, 2003.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain EMBRAER Model EMB-145 series airplanes. This proposal would require modifying the strap configuration of IC-600 #1 and #2 integrated computers to disable CAT II operations with the flight director. Enabling of CAT II operations with the flight director is not yet approved and could cause the flightcrew to receive hazardously misleading guidance information, which, in the event of a high-workload landing, could result in reduced controllability of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by February 26, 2004.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-66-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed rule may be obtained from Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2125; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-66-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-66-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
The Departmento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, notified the FAA that an unsafe condition may exist on certain EMBRAER Model EMB-145 series airplanes. The DAC advises that IC-600 integrated computers equipped with certain Engine Indication and Crew Alerting System (EICAS) software versions, not configured through configuration module IM-600, enable CAT II operations with the flight director. This combination is not approved. This condition, if not corrected, could cause the flightcrew to receive hazardously misleading guidance information, which, in the event of a high-workload landing, could result in reduced controllability of the airplane.
EMBRAER has issued Service Bulletins 145-31-0022, Change 05, and 145-31-0030, both dated January 22, 2002, which describe procedures for modifying the strap configuration of IC-600 #1 and #2 integrated computers to disable CAT II operations with the flight director. Service Bulletin 145-31-0022, Change 05, applies to airplanes equipped with EICAS software version 16.5, while 145-31-0030 applies to airplanes equipped with EICAS software version 17. Accomplishment of the actions specified in the applicable service bulletin is intended to adequately address the identified unsafe condition. The DAC classified these service bulletins as mandatory and issued Brazilian airworthiness directive 2000-10-02R2, dated February 22, 2002, to ensure the continued airworthiness of these airplanes in Brazil.
This airplane model is manufactured in Brazil and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the applicable service bulletin described previously.
The FAA estimates that 251 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 2 work hours per airplane to accomplish the proposed actions, and that the average labor rate is $65 per work hour. The cost of required parts would be negligible.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
To prevent enabling of CAT II operations with the flight director, which could cause the flight crew to receive hazardously misleading guidance information, and, in the event of a high-workload landing, could result in reduced controllability of the airplane, accomplish the following:
(a) Within 400 flight hours after the effective date of this AD: Modify the strap configuration of IC-600 #1 and #2 integrated computers to disable CAT II operations with the flight director, per the Accomplishment Instructions of EMBRAER Service Bulletin 145-31-0022, Change 05 (for airplanes equipped with EICAS software version 16.5); or 145-31-0030 (for airplanes equipped with EICAS software version 17); both dated January 22, 2002; as applicable.
(b) Actions accomplished before the effective date of this AD per the Accomplishment Instructions of EMBRAER Service Bulletin 145-31-0022, dated August 29, 2000; Change 01, dated January 8, 2001; Change 02, dated March 14, 2001; Change 03, dated March 22, 2001; or Change 04, dated April 10, 2001; are acceptable for compliance with the corresponding actions required by paragraph (a) of this AD.
(c) As of the effective date of this AD, no one may install an IC-600 #1 or #2 integrated computer equipped with EICAS software version 16.5 or 17, unless paragraph (a) of this AD has been accomplished.
(d) In accordance with 14 CFR 39.19, the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, is authorized to approve alternative methods of compliance for this AD.
The subject of this AD is addressed in Brazilian airworthiness directive 2000-10-02R2, dated February 22, 2002.
Federal Aviation Administration, DOT.
Notice of public meeting; reopening of the comment periods.
This document reopens the comment periods and announces a public meeting on the subject proposed airworthiness directives (ADs) that would apply to Cessna Aircraft Company (Cessna) Models 401, 401A, 401B, 402, 402A, 402B, 402C, 411, and 411A, and 414A airplanes. The proposed ADs would supersede existing ADs and would require you to repetitively inspect the wing spar caps for fatigue cracks with any necessary repair or replacement on all airplanes and incorporate a spar strap modification on each wing spar on certain airplanes. The purpose of the meeting is to discuss technical issues and proposed corrective actions related to our determination that AD actions are necessary to prevent wing spar cap failure due to undetected fatigue cracks. Such failure could result in loss of a wing with consequent loss of airplane control. We are reopening the comment period to facilitate collection and consideration of data that concerns the technical issues. We are also seeking information about possible corrective actions other than those in the proposed ADs.
The Federal Aviation Administration (FAA) will hold the public meeting on March 3 and 4, 2004, starting at 9 a.m. both days, at the Hilton, Washington Dulles Airport, in Herndon, Virginia.
Registration will begin at 8:30 a.m. on the first day of the meeting.
We must receive any comments on these proposed rules on or before April 5, 2004.
We will hold the public meeting at the Hilton, Washington Dulles Airport, 13869 Park Center Road, Herndon, Virginia 20171.
If you are unable to attend, you may mail comments (clearly marked with the docket numbers) to FAA, Central
We will give the same consideration to those comments mailed to us as those presented at the public meeting.
•
•
•
• The FAA has service history of cracks in the wing spars of numerous airplanes since the late 1970s. The most recent was a fatal wing separation accident in 1999.
• Fatigue analysis performed by Cessna and the FAA shows that the wing spars of Cessna 400 series airplanes could fail if not modified.
• The primary safety concern is that once a crack starts in the spar cap, it grows to critical length before it can be detected by current nondestructive inspection (NDI) methods. At the critical length, the crack is still under the fastener head.
• The NDI methods used by current AD and maintenance programs are not detecting fatigue cracks and other damage. Cessna reported only one instance where cracks were detected using NDI procedures. There are other reported instances where cracks were detected visually in the wheel well area on the aft flange.
• The problem with visual inspections is the access doubler flanges cover a large percentage of the forward spar flange. This limits the effectiveness of the visual inspections.
The comment periods will remain open until April 5, 2004, which is approximately one month after the public meeting.
Because ADs address unsafe conditions associated with aeronautical products, we routinely evaluate proprietary data to determine if AD action is necessary. In determining whether we should include such material in the Rules Docket, FAA applies the standards developed under the Freedom of Information Act (FOIA; 5 U.S.C. section 552); in particular Exemption 4 (section 552(B)(4). Exemption 4 protects “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”
When data is determined to meet the standards above, we do not place them in the Rules Docket. We retain them in a separate file that is not released to the public.
Cessna's fatigue analysis meets the requirements of proprietary under the Trade Secret Act and Exemption 4 of the Freedom of Information Act.
• There is no admission fee or other charge to attend or participate in this meeting. You are responsible for your own transportation and accommodations for the meeting. The meeting is open to all who requested in advance to present or who register on the day of the meeting. This is subject to availability of space in the meeting room.
• FAA representatives will conduct the meeting. We will have a panel of technical experts and managers to discuss information on the subject.
• The public meeting is intended as a forum to:
• Resolve questions that concern the approach used in our determination that AD action is necessary; and
• Seek additional data and supporting methodologies from industry, the general public, and operators. You must limit your presentation and submittals to data of this issue.
• The meeting will allow you to present additional information not currently available to FAA and an opportunity for FAA to explain to you the methodology and technical
• FAA experts, industry, and public participants are expected to hold a full discussion of all technical material presented at the meeting. If you present conclusions on this subject, you must submit data that supports your conclusions. All data will be part of the Rulemaking Dockets.
• We will try and accommodate all speakers. In order to do this, we may need to limit the time for presenters.
• We can make sign and oral interpretation available at the meeting, as well as an assistive listening device. If you need this assistance, make your request to FAA at least 10 days prior to the public meeting.
• A court reporter will record the discussions of the meeting. We will place the transcript of the meeting in the Rules Dockets. If you would like to purchase a copy of the transcript, you must contact the court reporter directly. We will provide further information at the meeting.
• We will review and consider all material presented. Position papers or materials that present views or information related to the proposed ADs may be accepted at the discretion of the presiding officer and placed in the Rules Dockets. The FAA requests that you provide 10 copies of all materials for distribution to the panel members. You have the choice on whether you want to present copies of the material to the audience.
• Panel member statements are intended to facilitate discussion of or to clarify issues. The FAA will consider comments made at this meeting before making a final decision on the issuance of any airworthiness directive.
• The meetings are designed to solicit public views and more complete information on the proposed ADs. Therefore, we will conduct the meeting in an informal and nonadversial manner.
Federal Trade Commission.
Notice of revised regulatory review schedule.
The Federal Trade Commission (“Commission”) has a program of systematic review of all of its rules and guides. The Commission hereby gives notice that, based on its current ongoing review proceedings, as well as additional rulemaking proceedings required by new legislation, it does not intend to announce review of any additional rules or guides during 2004. The ten-year regulatory review schedule previously published by the Commission, 67 FR 9630 (Mar. 4, 2002), has been modified accordingly.
Neil Blickman, Federal Trade Commission, Bureau of Consumer Protection, Division of Enforcement, 600 Pennsylvania Ave., NW., Washington DC 20580, (202) 326-3038.
The Commission has decided not to initiate review of any additional rules or guides during 2004. Currently, the Commission has ongoing review or amendment proceedings that relate to a number of its rules and guides. In addition, during 2004, the Commission will be required to promulgate rules pursuant to the Fair and Accurate Credit Transactions Act of 2003, Pub. L. 108-159 (requiring at least 25 separate rules and 8 studies); the Fairness to Contact Lens Consumers Act of 2003, Pub. L. 108-164; and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, Pub. L. 108-187. Accordingly, the Commission proposes a revised ten-year regulatory review schedule. A copy of this tentative schedule is appended. The Commission may, in its discretion, modify or reorder the schedule in the future to incorporate new legislative rules, or to respond to external factors (such as changes in the law) or other considerations.
15 U.S.C. 41-58.
By direction of the Commission.
Food and Drug Administration, HHS.
Advance notice of proposed rulemaking; extension of comment period.
The Food and Drug Administration (FDA) is extending to February 25, 2004, the comment period for the advance notice of proposed rulemaking (ANPRM) that appeared in the
Submit written and electronic comments by February 25, 2004.
Submit written comments to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Nancy T. Crane, Center for Food Safety and Applied Nutrition (HFS-830), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740-3835, 301-436-1456, or e-mail:
In the
The agency has received multiple requests for either a 30-day or 60-day extension of the comment period for the ANPRM. Each request conveyed concern that the current 60-day comment period does not allow sufficient time to develop a meaningful or thoughtful response to the ANPRM. In addition, two requests noted that the current comment period occurred during a period of time that included the Thanksgiving and year-end holidays. All of the requests explained that an extension is necessary due to the complexity, implications, and/or importance of the rulemaking on health claims and dietary guidance in food and dietary supplement labeling.
FDA has considered the requests and is extending the comment period for the ANPRM for 30 days, until February 25, 2004. The agency believes that a 30-day extension allows adequate time for interested persons to submit comments without significantly delaying rulemaking on these important issues.
Interested persons may, on or before February 25, 2004, submit to the Division of Dockets Management (see
Coast Guard, DOT.
Notice of docket closure.
On January 2, 2002 and again on June 5, 2002, the Coast Guard published requests for comments on the expanded special anchorage area in Henderson Harbor, New York. The Coast Guard received 27 comments in response to these requests. Based upon the comments and in the interest of safe navigation, the Coast Guard has decided that no change will be made at this time to the Henderson Harbor Special Anchorage Area A in Henderson Harbor, Henderson, New York.
The docket for this rulemaking is closed as of October 10, 2003.
The Ninth Coast Guard District Marine Safety Office maintains the public docket for this rulemaking. This docket is available for inspection or copying at room 2069, Ninth Coast Guard District, between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays.
Commander Michael Gardiner, Chief, Marine Safety Compliance Operations Branch, Ninth Coast Guard District Marine Safety Office, 1240 E. Ninth Street, Cleveland, Ohio 44199-2060. The phone number is (216) 902-6056.
On March 7, 2000, the Coast Guard published a final rule in the
Subsequently, the Coast Guard published two requests for comments on January 2, 2002 and again on June 5, 2002 [67 FR 17, 67 FR 38625]. As a result of the subsequent requests for comments, the Coast Guard received 15 negative and 12 positive comments. Virtually every positive comment was based upon a concern for vessel safety, primarily the safety of vessels due to low water levels.
The negative comments generally focused the concern with having vessels obstructing waterfront views, the economic impact of an expanded anchorage area, and the additional time it would take to transit the extension of 1000′. The concern for vessel safety is ultimately the most important consideration. Thus, while these latter comments are important, the Coast Guard is not persuaded at this time to make any changes in light of the concerns they raise.
The regulations governing special anchorage areas are found in 33 CFR 110.1. In particular, sound and light requirements are not applicable to certain vessels anchored in these areas established by the Coast Guard. The Coast Guard does not further regulate the particular use of a special anchorage area by local or state authorities.
In the special anchorage area established in Henderson Harbor, Henderson, New York, the Town Council has established mooring buoys and a fee-based system for the use of those mooring buoys. An enlargement of this special anchorage area by the Coast Guard did not impact what portion or how the Town Council wishes to utilize the special anchorage area. It only provided a larger area over which the Town Council may exercise their control.
Enlarging the special anchorage area did not require the Henderson Town Council to adopt new measures or change how they currently regulate usage of the special anchorage area. The two issues are separate and distinct. As such, the Coast Guard feels that in order to ensure the safety of vessels using that area, the larger anchorage area already established will be left in place.
As such, the Coast Guard is closing this docket. If future action is needed, the Coast Guard will open a rulemaking or issue a new request for comments.
Coast Guard, DHS.
Notice of study results.
The Coast Guard announces the completion of a Port Access Route Study that evaluated the need for modifications to current vessel routing and traffic management measures in the approaches to Chesapeake Bay, Virginia. The study was completed in June 2003. This document summarizes the study recommendations, which include enhancements and modifications to existing vessel routing measures and the creation of a new offshore anchorage area.
Comments and material received from the public, as well as the actual study and other documents mentioned in this document, are part of docket USCG-2002-12876 and are available for inspection or copying at the Docket Management Facility, U.S. Department of Transportation, room PL-401, 400 Seventh Street, SW., Washington, DC, 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
For further information on this document, contact John Walters, Aids to Navigation and Waterways Management Branch, Fifth Coast Guard District, telephone 757-398-6230, e-mail
You may obtain a copy of the Port Access Route Study by contacting either person listed under the
The following definitions are from the International Maritime Organization's (IMO's) “Ships’ Routeing Guide” (except those marked by an asterisk) and should help you review this notice:
We announced the PARS in a notice published in the
The study area encompassed the area bounded by a line connecting the following geographic points (All coordinates are NAD 1983.):
The study area included the Eastern and Southern approaches to Chesapeake Bay used by commercial and public vessels.
The approaches to Chesapeake Bay were last studied in 1989, and the final results were published in the
On April 12 through 17, 2001, the National Oceanic and Atmospheric Administration (NOAA) conducted a hydrographic data survey of the area. The survey indicated that Nautilus Shoal, which borders the northern edge of the Eastern Approach, is slowly moving southward and is encroaching on the inbound traffic lane. This limits the use of this traffic lane to vessels with drafts less than 27 feet (8.2 meters). Because of this encroachment, the current PARS evaluated changes to the Eastern Approach that would better accommodate deeper-draft, inbound vessels. Also, we decided to review the location of the Southern Approach, particularly in light of the many existing and proposed improvements to the ports of Hampton Roads, Baltimore, and Richmond that will directly affect the numbers, size, and types of vessels using these approaches.
These improvements include dredging and expanding the Norfolk International Terminal, improving the Portsmouth Marine Terminal, completing the Baltimore Harbor Anchorages and Channels improvement project, deepening portions of the James River, improving the Port of Richmond wharf, and completing the 55-foot anchorage for Hampton Roads. Future projects include building a new Virginia Port facility at Craney Island, improving the Pinners Point facility, reopening the Cove Point liquefied natural gas facility, deepening the inbound segment of Thimble Shoals Channel from 45 to 50 feet, and deepening the outbound segment of Thimble Shoals Channel from 50 to 55 feet. Projections for the Port of Hampton Roads forecast a 5% growth rate in container shipping for 2003. In 2002, 24 cruise ships visited downtown Norfolk. Thirty-four cruise ships were scheduled to arrive in Norfolk during 2003. It is anticipated that passenger numbers will increase from 20,000 in 2001 to 80,000 in 2004. The size of vessels calling on these ports should also grow. The “S” class container ships, currently in use by Maersk Sealand, may soon call on the Port of Virginia. These massive container vessels are 1,138 feet in length, 140 feet wide, draft almost 48 feet when fully loaded, and have a capacity for 7,100 twenty-foot equivalent units (TEUs). Considering this projected growth in Hampton Roads and the potential growth in other ports accessed via the entrance to Chesapeake Bay, increases in all types of commercial vessel traffic is almost certain.
One potential study recommendation listed in the Notice of Study published July 26, 2002, in the
First, we announced the start of the study through a Notice of Study published July 26, 2002, in the
The PARS recommendations include the following:
1. Modify the location of the existing Eastern Approach TSS;
2. Modify the regulations for the Southern Approach TSS to allow vessels with a draft of 42 feet (12.8 meters) or greater to use the deep-water route;
3. Retain the Chesapeake Light; and
4. Establish an offshore anchorage area.
This PARS recommendation was not previously identified as a potential study recommendation in the Notice of Study published July 26, 2002, in the
A brief synopsis of how the PARS recommendations will proceed towards implementation follows:
1. Changes to the TSSs will require approval by the International Maritime Organization (IMO). Any changes to the TSSs will be accomplished through the rulemaking process.
2. The establishment of an offshore anchorage area will be accomplished through the rulemaking process.
3. Changes to aids to navigation resulting from the above actions will be accomplished through the following established procedures—notification of proposed changes in the Local Notice to Mariners with an opportunity for comment and notification of the final changes in the Local Notice to Mariners.
We appreciate the comments we received concerning the PARS. We will provide ample opportunity for additional comments on any recommended changes to existing routing or operational measures that require codification through notices of proposed rulemakings (NPRMs) published in the
Fish and Wildlife Service, Interior.
Proposed rule; reopening of public comment period and notice of availability of draft economic analysis and draft environmental assessment.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of the draft economic analysis and draft environmental assessment for the proposed designation of critical habitat for
We will accept and consider all comments received on or before February 26, 2004. Any comments that we receive after the closing date may not be considered in the final decision on this proposal.
You may submit written comments and information to the Field Supervisor, U.S. Fish and Wildlife Service, 4000 Airport Parkway, Cheyenne, WY 82001, or by facsimile to 307-772-2358. You may hand deliver written comments to our Wyoming Field Office at the address given above. You may send comments by electronic mail (e-mail) to
You may obtain copies of the draft economic analysis and draft environmental assessment, review comments and materials received, and review supporting documentation used in preparation of the proposed rule, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service's Wyoming Field Office. The draft economic analysis and draft environmental assessment, as well as the proposed rule for the critical habitat designation, also are available on the Internet at
Brian T. Kelly, Field Supervisor, Wyoming Field Office, U.S. Fish and Wildlife Service, at the above address (telephone 307-772-2374; facsimile 307-772-2358; e-mail
On March 14, 2003 (68 FR 12326), we proposed to designate critical habitat for
Critical habitat identifies specific areas, both occupied and unoccupied, that are essential to the conservation of a listed species and that may require special management considerations or protection. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of
Section 4 of the Act requires that we consider economic and other relevant impacts prior to making a final decision on what areas to designate as critical habitat. We have prepared a draft economic analysis and draft environmental assessment for the proposal to designate certain areas as critical habitat for
We intend any final action resulting from this proposal to be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We do not anticipate extending or reopening the comment period on the proposed rule after this comment period ends (
(1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of designation will outweigh any threats to the species due to designation;
(2) Specific information on the amount and distribution of
(3) Land use practices and current or planned activities in the subject area and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families; and
(5) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.
We will also accept comments on the proposed critical habitat designation. If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (
Comments previously submitted need not be resubmitted as they have already been incorporated into the public record and will be fully considered in the final rule. Comments submitted during this comment period also will be incorporated into the public record and will be fully considered in the final rule. In order to comply with the terms of a settlement agreement, we are required to complete the final designation of critical habitat for
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address, which we will honor to the extent allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your comments. However, we will not consider anonymous comments. To the extent consistent with applicable law, 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.
Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for public inspection, by appointment, during normal business hours at the Wyoming Field Office (
The primary author of this notice is the Wyoming Field Office staff (
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Agricultural Marketing Service, USDA.
Notice of advisory committee meeting.
In accordance with the Federal Advisory Committee Act (5 U.S.C. App. II) announcement is made of a forthcoming meeting of the National Advisory Committee for Tobacco Inspection Services.
March 2, 2004, 9 a.m.
The meeting will be held at the Old Town Alexandria Holiday Inn, 480 King Street, Alexandria, Virginia 22314.
John P. Duncan III, Deputy Administrator, Tobacco Programs, AMS, USDA, Telephone number (202) 205-0567 or fax (202) 205-0235.
The purpose of the meeting is to discuss and recommend the level of service to be provided to producers by AMS, review the financial status of the tobacco inspection program, recommend the user fee rate needed to maintain the desired level of service for the 2004-2005 marketing season, and review various regulations issued pursuant to the Tobacco Inspection Act (7 U.S.C. 511
The meeting is open to the public. Persons, other than members, who wish to address the Committee at the meeting should contact John P. Duncan III, Deputy Administrator, Tobacco Programs, AMS, USDA, STOP 0280, 1400 Independence Avenue, SW., Washington, DC 20250-0280, prior to the meeting. Written statements may be submitted to the Committee before, at or after the meeting. If you need any accommodations to participate in the meeting, please contact the Tobacco Programs at (202) 205-0567 by February 20, 2004, and inform us of your needs.
Commodity Credit Corporation, USDA.
Notice; request for comments.
In accordance with the Paperwork Reduction Act of 1995, the Commodity Credit Corporation (CCC) is seeking comments from all interested individuals and organizations on the extension and revision of an approved information collection under the Paperwork Reduction Act. CCC procures various processed foods and commodities to be exported and donated for use in humanitarian food aid programs. Information related to this activity was previously collected on the United States Agency for International Development (USAID) Form USAID 1550-4, Commodity Request for Foreign Distribution. The Food Aid Request Entry System (FARES) has been developed to replace the AID Form 1550-4 with electronic processing through the FARES.
Comments on this notice must be received on or before March 29. 2004 to be assured consideration.
Comments concerning this notice should be addressed to: Donna Ryles, Chief, Planning and Analysis Division, Kansas City Commodity Office, 6501 Beacon Drive, Kansas City, Missouri 64133-4676. Comments also may be submitted via facsimile to (816) 926-1648, telephone (816) 926-1505 or by e-mail to
Sharon Hadder, Marketing Specialist, (202) 720-3816, or
Comment is invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the
Food and Nutrition Service, USDA.
Notice.
This notice solicits comments related to methods for improving access to the Summer Food Service Program by children in needy areas.
Comments must be postmarked by March 29, 2004 to be considered.
Comments should be addressed to Mr. Robert Eadie, Chief, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service, Department of Agriculture, 3101 Park Center Drive, Room 634, Alexandria, Virginia 22302-1594. Comments will also be accepted via e-mail sent to
Keith Churchill or Marcus Hambrick, Policy and Program Development Branch, at the above address, or by telephone at (703) 305-2590.
The Food and Nutrition Service, USDA (FNS) is committed to improving access to the Summer Food Service Program (SFSP), authorized by Section 13 of the Richard B. Russell National School Lunch Act, 42 U.S.C. 1761, by children in needy areas. FNS has partnered with national service organizations to promote the SFSP, utilized regional and local community groups to identify unique demographic needs and participation barriers, met with potential sponsoring organizations and community leaders to identify potential solutions to common barriers and targeted specific unserved and underserved areas for Program expansion. In addition to these endeavors, State agencies have made significant efforts to promote and expand the Program.
These endeavors have led FNS to develop and implement additional outreach projects to improve Program access. As part of a comprehensive outreach effort, FNS has developed a media kit and marketing campaign, created SFSP promotional articles for newsletters and publications, and conducted activities designed for specific unserved and underserved areas.
Additionally, FNS has developed Program policies that encourage and expand access to the Program by children in needy areas. Allowing school sponsors to serve summer meals under an existing National School Lunch Program agreement has enabled seamless year-round participation. Other policies include authorizing eligibility determinations based on alternate means in lieu of applications, expanding approved meal service times, and waiving certain budget requirements. Collectively, changes to Program policies have enabled sponsors' participation in the SFSP while considering unique circumstances.
While modest success has been achieved in increasing Program participation by children, FNS continues to solicit comments and evaluate innovative suggestions related to improving Program access, especially in rural areas. In recent years, FNS has received and evaluated numerous suggestions, including: waiving application requirements for enrolled sites in needy areas, allowing off-site consumption of meals, establishing pilot programs to further evaluate innovative methods to improve Program access and even altering the congregate feeding design of the current program to accommodate home-based lunches. As a result of these and other suggestions, FNS has expanded Program access and lessened the management burden placed on Program sponsors.
FNS solicits comments and suggestions related to Program access from all parties. FNS is particularly interested in suggestions from faith-based and community-based organizations, which might take advantage of existing service delivery methods and expand opportunities for program participation by such organizations.
Commenters should consider that FNS does not have the authority to waive certain statutory and regulatory requirements that govern the SFSP,
FNS encourages all interested parties to submit comments and suggestions related to improving Program access.
Forest Service, USDA.
Notice of Availability.
Under the National Environmental Policy Act (Pub. L 91-190) and the National Forest Management Act (Pub. L. 94-588), the Forest Service announces the availability of the Final Environmental Impact Statement for the South Platte Wild and Scenic River Study. The FEIS analyzes the direct, indirect and cumulative impacts of the alternatives analyzed in the study. A Record of Decision is not being issued at this time in order to receive comments on new information not previously disclosed, namely, (1) the proposed amendment to the Forest Plan, and (2) the Preferred Alternative.
Comments must be received by April 2, 2004.
Send written comments to: Robert J. Leaverton, Forest Supervisor, Attn: South Platte Wild and Scenic River Study, Pike and San Isabel
John Hill, Planning Staff Officer, at above address or by phone at (719)-553-1414, or by e-mail at
A portion of the river was studied in the early 1980's during preparation of PSICC's Forest Plan. That portion was between Cheesman and Elevemile Reservoirs and was found eligible for inclusion in the National Wild and Scenic River System, but a decision was not made regarding the river's suitability (
The current study began in the early 1990's. It included the previous study area plus the river below Cheesman Reservoir to Stontia Springs Reservoir and the North Fork. Previous documents in this study include the Draft Legislative EIS (April 1997) and a Supplemental Draft Legislative EIS (March 2000). These documents were labeled “legislative” under the presumption that a recommendation would be made to Congress to designate some or all of the eligible river segments in the study. However, under the Final EIS's Preferred Alternative, no decisions on suitability is contemplated. Therefore no recommendation to Congress would be forthcoming and accordingly the modifier “legislative” is not employed.
The Preferred Alternative includes a proposed amendment to the PSICC Forest Plan. An amendment had been contemplated in the Supplemental Draft EIS, but only as an item that would be consistent with whatever alternative was selected for implementation. Its details had not been developed in that document. However, public response indicated a need to review the amendment prior to its being selected in a decision document. In light of this, the Record of Decision is being postponed to provide an opportunity for comment on the proposed amendment. Comments are due April 2, 2004.
Copies of the Final EIS are being provided to entities known to be interested in the study. For others who are interested in reading the document, it has been posted on the web at
Forest Service, USDA.
Notice of meeting.
The Tehama County Resource Advisory Committee (RAC) will meet in Red Bluff, California. Agenda items to be covered include: Introductions, Approval of Minutes, Public Comment, Chairman Report, Reports from Committees, Presentation of Projects/Possible Action, General Discussion, Next Agenda.
The meeting will be held on February 12, 2004 from 9 a.m. and end at approximately 12 p.m.
The meeting will be held at the Lincoln Street School, Conference Room A, 1135 Lincoln Street, Red Bluff, CA. Individuals wishing to speak or propose agenda items must send their names and proposals to Jim Giachino, DFO, 825 N. Humboldt Ave., Willows, CA 95988.
Bobbin Gaddini, Committee Coordinator, USDA, Mendocino National Forest, Grindstone Ranger District, P.O. Box 164, Elk Creek, CA 95939. (530) 968-5329; e-mail ggaddin;@fs.fed.us.
The meeting is open to the public. Committee discussion is limited to Forest Service staff and Committee members. 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. Public input sessions will be provided and individuals who made written requests by February 10, 2004 will have the opportunity to address the committee at those sessions.
Rural Business-Cooperative Service, USDA.
Notice.
As set forth in 7 CFR part 4279, subpart B, each fiscal year the Agency shall establish a limit on the maximum portion of guarantee authority available for that fiscal year that may be used to guarantee loans with a guarantee fee of 1 percent or guaranteed loans with a guarantee percentage exceeding 80 percent.
Allowing the guarantee fee to be reduced to 1 percent or exceeding the 80 percent guarantee on certain guaranteed loans that meet the conditions set forth in 7 CFR 4279.107 and 4279.119 will increase the Agency's ability to focus guarantee assistance on projects which the Agency has found particularly meritorious, such as projects in rural communities that remain persistently poor, which experience long-term population decline and job deterioration, are experiencing trauma as a result of natural disaster, or are experiencing fundamental structural changes in the economic base.
Not more than 12 percent of the Agency's quarterly apportioned guarantee authority will be reserved for loan requests with a guarantee fee of 1 percent, and not more than 15 percent of the Agency's quarterly apportioned guarantee authority will be reserved for guaranteed loan requests with a guarantee percentage exceeding 80 percent. Once the above quarterly limits have been reached, all additional loans guaranteed during the remainder of that quarter will require a 2 percent guarantee fee and not exceed an 80 percent guarantee limit. As an exception to this paragraph and for the purposes of this notice, loans developed by the North American Development Bank (NADBank) Community Adjustment and Investment Program (CAIP) will not count against the 15 percent limit. Up to 50 percent of CAIP loans may have a guarantee percentage exceeding 80 percent. The funding authority for CAIP loans is not derived from carryover or recovered funding authority of the Business and Industry (B&I) Guaranteed Loan Program.
Written requests by the Rural Development State Office for approval of a guaranteed loan with a 1 percent guarantee fee or a guaranteed loan
January 27, 2004.
Fred Kieferle, Processing Branch Chief, Business and Industry Division, Rural Business-Cooperative Service, USDA, Stop 3224, 1400 Independence Avenue, SW., Washington, D.C. 20250-3224, telephone (202) 720-7818.
This action has been reviewed and determined not to be a rule or regulation as defined in Executive Order 12866.
Bureau of the Census, Commerce.
Notice of determination.
In accordance with Title 13, United States Code (U.S.C.), Sections 182, 224, and 225, the Bureau of the Census (Census Bureau) has determined that limited financial data (revenue, expenses, and the like) for selected service industries are needed to provide a sound statistical basis for the formation of policy by various governmental agencies and that these data also apply to a variety of public and business needs. To obtain the desired data, the Census Bureau announces the administration of the Service Annual Survey.
Ruth A. Bramblett, Chief, Current Services Branch, Service Sector Statistics Division, on (301) 763-7089.
The Census Bureau conducts surveys necessary to furnish current data on subjects covered by the major censuses authorized by Title 13, U.S.C. The Service Annual Survey (SAS) provides continuing and timely national statistical data each year. Data collected in this survey are within the general scope, type, and character of those inquiries covered in the economic census.
The Census Bureau needs reports only from a limited sample of service sector firms in the United States. The SAS now covers all or some of the following nine sectors: Transportation and Warehousing; Information; Finance and Insurance; Real Estate and Rental and Leasing; Professional, Scientific, and Technical Services; Administration and Support and Waste Management and Remediation Services; Health Care and Social Assistance; Arts, Entertainment, and Recreation; and Other Services. The probability of a firm's selection is based on its revenue size (estimated from payroll); that is, firms with a larger payroll will have a greater probability of being selected than those with smaller ones. We are mailing report forms to the firms covered by this survey and require their submission within thirty days after receipt. These data are not publicly available from nongovernment or other government sources.
Based upon the foregoing, the Census Bureau is conducting the Service Annual Survey for the purpose of collecting these data.
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a current valid Office of Management and Budget (OMB) control number. In accordance with the PRA, 44 U.S.C., Chapter 35, the OMB approved the Service Annual Survey under OMB Control Number 0607-0422. Copies of the proposed forms are available upon written request to the Director, U.S. Census Bureau, Washington, DC 20233.
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 adopts the following Order:
Foreign-Trade Zones Board.
Import Administration, International Trade Administration, Department of Commerce.
Initiation of Antidumping Duty Investigations.
January 27, 2004.
David Goldberger at (202) 482-4136
On December 31, 2003, the Department of Commerce “the Department” received petitions filed in proper form by the Ad Hoc Shrimp Trade Action Committee, an ad hoc coalition representative of U.S. producers of frozen and canned warmwater shrimp and harvesters of wild-caught warmwater shrimp “the petitioner”. The petitioner filed amendments to the petitions on January 12, 2004.
In accordance with section 732(b)(1) of the Tariff Act of 1930 (“the Act”), the petitioner alleges that imports of certain frozen and canned warmwater shrimp from Brazil, Ecuador, India, Thailand, the People's Republic of China (“the PRC”) and the Socialist Republic of Vietnam (“Vietnam”), are, or are likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act, and that imports from Brazil, Ecuador, India, Thailand, the PRC and Vietnam, are materially injuring, or are threatening to materially injure, an industry in the United States.
The Department finds that the petitioner filed these petitions on behalf of the domestic industry because it is an interested party as defined in section 771(9)(G) of the Act and it has demonstrated sufficient industry support with respect to each of the antidumping investigations that it is requesting the Department to initiate.
The scope of these investigations include certain warmwater shrimp and prawns, whether frozen or canned, wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off,
The frozen or canned warmwater shrimp and prawn products included in the scope of the investigations, regardless of definitions in the Harmonized Tariff Schedule of the United States (“HTSUS”), are products which are processed from warmwater shrimp and prawns through either freezing or canning and which are sold in any count size.
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, whiteleg shrimp (Penaeus vannemei), banana prawn (Penaeus merguiensis), fleshy prawn (Penaeus chinensis), giant river prawn (Macrobrachium rosenbergii), giant tiger prawn (Penaeus monodon), redspotted shrimp (Penaeus brasiliensis), southern brown shrimp (Penaeus subtilis), southern pink shrimp (Penaeus notialis), southern rough shrimp (Trachypenaeus curvirostris), southern white shrimp (Penaeus schmitti), blue shrimp (Penaeus stylirostris), western white shrimp (Penaeus occidentalis), and Indian white prawn (Penaeus indicus).
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of the investigations. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of the investigations.
Excluded from the scope are (1) breaded shrimp and prawns (1605.20.10.20); (2) shrimp and prawns generally classified in the Pandalidae family and commonly referred to as coldwater shrimp, in any state of processing; (3) fresh shrimp and prawns whether shell-on or peeled (0306.23.00.20 and 0306.23.00.40); (4) shrimp and prawns in prepared meals (1605.20.05.10); and (5) dried shrimp and prawns.
The products covered by this scope are currently classified under the following HTSUS subheadings; 0306.13.00.03, 0306.13.00.06, 0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 1605.20.10.10, 1605.20.10.30, and 1605.20.10.40. These HTSUS subheadings are provided for convenience and for Customs and Border Protection (“CBP”) purposes only and are not dispositive, but rather the written descriptions of the scope of these investigations is dispositive.
As discussed in the preamble to the Department's regulations (
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that the Department's industry support determination, which is to be made before the initiation of the investigation, be based on whether a minimum percentage of the relevant industry supports the petition. A petition meets this requirement if the domestic producers or workers who support the petition account for: (1) at least 25 percent of the total production of the domestic like product; and (2) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: i) poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A), or ii) determine industry support using a statistically valid sampling method.
Section 771(4)(A) of the Act defines the “industry” as the producers of a domestic like product. In investigations involving some processed agricultural products, the statue allows the Department also to include producers of the raw agricultural product with the definition of the industry.
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,”
In this case, the domestic like product referred to in the petition is the single domestic like product defined in the “Scope of Investigations” section, above. At this time, the Department has no basis on the record to find the petition's definition of the domestic like product to be inaccurate. The Department, therefore, has adopted the domestic like product definition set forth in the petition. For a discussion of the domestic like product analysis in this case, see the
Moreover, the Department has determined that the petition contains adequate evidence of industry support; therefore, polling was unnecessary (
Accordingly, the Department determines that this petition is filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act.
The following are descriptions of the allegations of sales at less than fair value upon which the Department based its decision to initiate these investigations. The sources of data for the deductions and adjustments relating to U.S. and foreign market prices, constructed value (“CV”), and factors of production are discussed in greater detail in the country-specific Initiation Checklists, as appropriate. Should the need arise to use any of this information as facts available under section 776 of the Act in our preliminary or final determinations, we will re-examine the information and revise the margin calculations.
Regarding an investigation involving a non-market economy (“NME”) country, the Department presumes, based on the extent of central government control in an NME, that a single dumping margin, should there be one, is appropriate for all NME exporters in the given country. In the course of these investigations, all parties will have the opportunity to provide relevant information related to the issues of a country's NME status and the granting of separate rates to individual exporters.
The anticipated period of investigation “POI” for Brazil is October 1, 2002, through September 30, 2003.
The petitioner based export price (“EP”) on average unit values (“AUVs”) of headless, shell-on, frozen warmwater shrimp for the POI from official U.S. import statistics. As the AUVs used were net of international freight, insurance and import charges, no further deductions were made to derive U.S. prices.
The petitioner based normal value (“NV”) on home market ex-factory price quotes from Brazilian producers of head-on, shell-on frozen warmwater shrimp which it obtained from market research.
The estimated dumping margins in the petition, based on comparisons of EP to NV, ranged from 32 percent to 349 percent.
The anticipated POI for Ecuador is October 1, 2002, through September 30, 2003.
The petitioner based EP on AUVs of headless, shell-on, frozen warmwater shrimp for the POI from official U.S. import statistics. As the AUVs used were net of international freight, insurance and import charges, no further deductions were made to derive U.S. prices.
During the course of the initiation, the petitioner placed on the record information which indicated that there is no viable home market for certain frozen and canned warmwater shrimp from Ecuador because nearly all shrimp produced in Ecuador is produced for the export market. We confirmed this information based on our conversation with the market researcher.
In selecting the third-country market, the petitioner chose Italy because: 1) it is the largest third-country market for scope merchandise outside of the United States during the POI; 2) the aggregate quantity of scope merchandise sold by Ecuadorian exporters to Italy accounted for more than five percent of the aggregate quantity of the scope merchandise sold in the United States; and 3) the product sold to the Italian market is comparable to the product which served as the basis for EP. After examining this evidence, we found the petitioner's selection of Italy as the comparison market to be reasonable.
The petitioner based NV on prices published by the Torino, Italy Chamber of Commerce for the same count sizes upon which it based EP. These prices were adjusted to reflect headless, shell-on shrimp, comparable to that which is imported into the United States. The petitioner further adjusted these prices
The estimated dumping margins in the petition, based on comparisons of EP to NV, ranged from 85 percent to 166 percent.
The anticipated POI for India is October 1, 2002, through September 30, 2003.
The petitioner based EP on AUVs of headless, shell-on, frozen warmwater shrimp for the POI from official U.S. import statistics. Although the AUVs used were net of international freight, insurance and import charges, the petitioner made a deduction for import charges, as well as foreign inland freight, to derive U.S. prices. We adjusted the petitioner's EP calculation by not deducting an amount for foreign inland freight and U.S. import expenses because the petitioner either provided inadequate support to deduct these expenses from EP in the petition, or the starting price did not include them.
The petitioner claims that the home market is not viable for purposes of calculating normal value. Section 773(a)(1)(C)(iii) of the Act provides that the Department may determine that home market sales are inappropriate as a basis for determining normal value if the particular market situation would not permit a proper comparison. In the petition, the petitioner placed on the record information which indicated that virtually all of the frozen and canned warmwater shrimp sold in the home market is of non-export quality. We confirmed this information based on our conversations with the market researcher.
In selecting the third-country market, the petitioner chose Japan because: 1) it is the largest third-country market for scope merchandise outside of the United States during the POI; 2) the aggregate quantity of scope merchandise sold by Indian exporters to Japan accounted for more than five percent of the aggregate quantity of the scope merchandise sold in the United States; and 3) the product sold to the Japanese market is comparable to the product which served as the basis for EP. After examining this evidence, we found the petitioner's selection of Japan as the comparison market to be reasonable.
The petitioner based NV on publicly listed price quotations from the Tokyo Central Wholesale Market for the same count sizes upon which it based EP. These prices were adjusted to reflect headless, shell-on and frozen warmwater shrimp, comparable to that which is imported into the United States. The petitioner further adjusted NV by deducting import charges. We revised the petitioner's calculation of the average yen/U.S. dollar exchange rate by calculating a simple average of the daily rates as posted on the Department's Web site rather than monthly averages as posted on the Federal Reserve's Web site. In addition, as noted in the EP section above, we adjusted the petitioner's calculation by not deducting an amount for foreign inland freight expenses. Because the proposed foreign inland freight adjustment to NV is based on the identical information as the proposed adjustment to EP, we similarly find that the petitioner provided inadequate support to substantiate this adjustment. Therefore, we have also not deducted foreign inland freight expenses from NV.
Pursuant to section 773(b) of the Act, the petitioner provided information demonstrating reasonable grounds to believe or suspect that sales by Indian producers in the relevant foreign market were made at prices below the cost of production (“COP”) and, accordingly, requested that the Department conduct a country-wide sales-below-COP investigation in connection with this investigation. The Statement of Administrative Action (“SAA”), submitted to the Congress in connection with the interpretation and application of the URAA, states that an allegation of sales below COP need not be specific to individual exporters or producers. SAA, H.R. Doc. No. 103-316 at 833 (1994). The SAA, at 833, states that “Commerce will consider allegations of below-cost sales in the aggregate for a foreign country, just as Commerce currently considers allegations of sales at less than fair value on a country-wide basis for purposes of initiating an antidumping investigation.”
Further, the SAA provides that section 773(b)(2)(A) of the Act retains the requirement that the Department have “reasonable grounds to believe or suspect” that below-cost sales have occurred before initiating such an investigation. Reasonable grounds exist when an interested party provides specific factual information on costs and prices, observed or constructed, indicating that sales in the foreign market in question are at below-cost prices.
Pursuant to section 773(b)(3) of the Act, COP consists of the cost of manufacturing (“COM”); selling, general, and administrative expenses (“SG&A”); financial expenses; and packing expenses. Here, the petitioner calculated the COM based on its own production experience, adjusted for known differences between costs to produce frozen and canned warmwater shrimp in the United States and in India using publically available information. Specifically, for fresh shrimp, the petitioner used consumption rates published by the National Marine Fisheries Service. The petitioner used the U.S. producers' own consumption rates for other raw materials, direct labor and energy. To adjust the U.S. producers' costs associated with fresh shrimp, the petitioner relied upon market research. To adjust the U.S. producers' costs associated with sodium tripolyphosphate and packing materials, the petitioner relied upon Indian import statistics as published by the Government of India Ministry of Commerce and Industry. To adjust the U.S. producers' costs associated with labor, the petitioner relied upon Government of India Labor Bureau statistics. To adjust the U.S. producers' costs associated with utilities, the petitioner relied upon Organization for Economic Cooperation and Development's (“OECD”) statistics. The petitioner relied upon its own overhead costs, except for depreciation, which was based on the 2002 financial statements of two Indian seafood processors. To calculate SG&A and financial expense, the petitioner relied upon the 2002 financial statements of two Indian seafood processors.
Based on a comparison of the Japanese market prices for frozen and canned warmwater shrimp to the COP calculated in the petition, we find
Pursuant to sections 773(a)(4), 773(b) and 773(e) of the Act, the petitioner also based NV for sales in the United States on CV. The petitioner calculated CV using the same COM, SG&A, and financial expense figures used to compute the Japanese third-country market costs. The petitioner did not include any amount for profit. Therefore, CV is equivalent to COP.
Based on the changes noted above, the recalculated dumping margins for certain frozen and canned warmwater shrimp from India range from 82.30 percent to 110.90 percent.
The anticipated POI for the PRC is April 1, 2003, through September 30, 2003.
The petitioner based EP on AUVs of headless, shell-on, frozen warmwater shrimp for the POI from official U.S. import statistics. As the AUVs used were net of international freight, insurance and import charges, no further deductions for these expenses were made to derive U.S. prices.
The PRC is an NME country and no determination to the contrary has yet been made by the Department.
The petitioner based NV on factors of production. The petitioner asserted that it did not have specific, reliable information on the factors of production incurred for subject merchandise in the PRC. Therefore, the petitioner relied upon an average of factors of production ratios used in the United States for the NV calculation. Specifically, the petition used production factors provided by several U.S. warmwater shrimp processors.
The petitioner selected India as the surrogate country. The petitioner argued that, pursuant to section 773(c)(4) of the Act, India is an appropriate surrogate because it is a market-economy country that is at a comparable level of economic development to the PRC and is a significant producer of comparable merchandise.
In accordance with section 773(c)(4) of the Act, the petitioner valued factors of production, where possible, on reasonably available, public surrogate country data. To value certain raw materials, the petitioner used official Indian government import statistics, excluding those values from countries previously determined by the Department to be NME countries and excluding imports into India from Indonesia, Korea and Thailand, in light of the prevalence of export subsidies in those countries.
To value raw warmwater shrimp, the major input, the petitioner used a market researcher to determined the cost of shrimp in India.
The petitioner calculated surrogate financial ratios (depreciation, SG&A and profit) using the 2001 financial statements of two Indian seafood processors that process marine products. To calculate a single surrogate ratio for overhead, depreciation, SG&A, and profit, the petitioner calculated a simple average for the two Indian seafood processors.
In its calculation of the surrogate profit and financial expenses, the petitioner included a zero value expense when averaging the experiences of the two Indian seafood processors.
However, it is the Department's practice not to average a zero expense into the calculation of the surrogate financial ratios.
Based on comparisons of EP to NV, calculated in accordance with section 773(c) of the Act, the estimated recalculated dumping margins for certain frozen and canned warmwater shrimp from the PRC range from 112.81 percent to 263.68 percent.
The anticipated POI for Thailand is October 1, 2002, through September 30, 2003.
The petitioner based EP on AUVs of frozen, cooked and peeled shrimp for the POI from official U.S. import statistics. Although the AUVs used were net of international freight, insurance and import charges, the petitioner made a deduction for import charges, as well as foreign inland freight, to derive U.S. prices. We adjusted the petitioner's EP calculation by not deducting amounts for foreign inland freight and U.S. import expenses because the petitioner either provided inadequate support for these expenses in the petition, or the starting price did not include them.
In the petition, the petitioner placed on the record information which indicated that there is no viable home market for certain frozen and canned warmwater shrimp from Thailand because the Thai market purchases only fresh (
In selecting the third-country market, the petitioner chose Japan because: 1) it is the largest third-country market for scope merchandise outside of the United States during the POI; 2) the aggregate quantity of scope merchandise sold by Thai exporters to Japan accounted for more than five percent of the aggregate quantity of the scope merchandise sold in the United States; and 3) the product sold to the Japanese market is comparable to the product which served as the basis for EP. After examining this evidence, we found the petitioner's selection of Japan as the comparison market to be reasonable.
The petitioner based NV on AUVs of Thai exports of frozen, cooked shrimp to Japan during the POI. We revised the petitioner's calculation of the average yen/U.S. dollar exchange rate by calculating a simple average of the daily rates as posted on the Department's Web site rather than monthly averages as posted on the Federal Reserve's Web site. In addition, as noted in the EP section above, we adjusted the petitioner's calculation by not deducting an amount for foreign inland freight expenses. Because the proposed foreign inland freight adjustment to NV is based on the identical information as the proposed adjustment to EP, we similarly find that the petitioner provided inadequate support to substantiate this adjustment. Therefore, we have also not deducted foreign inland freight expenses from NV.
Based on the changes noted above, the recalculated dumping margin for certain frozen and canned warmwater shrimp from Thailand is 57.64 percent.
The anticipated POI for the PRC is April 1, 2003, through September 30, 2003.
The petitioner based EP on AUVs of headless, shell-on, frozen warmwater shrimp for the POI from official U.S. import statistics. As the AUVs used were net of international freight, insurance and import charges, no further deductions for these expenses were made to derive U.S. prices.
Vietnam is an NME country and no determination to the contrary has yet been made by the Department. In accordance with section 771(18) of the Act, any determination that a foreign country has at one time been considered an NME shall remain in effect until revoked. See the Initiation Checklist.
The petitioner based NV on factors of production. The petitioner asserted that it did not have specific, reliable information on the factors of production incurred for subject merchandise in Vietnam. Therefore, the petitioner relied upon an average of factors of production ratios used in the United States for the NV calculation. Specifically, the petition used production factors provided by several U.S. warmwater shrimp processors. The petitioner argues that, because these companies are significant producers of the domestic like product, their experience is an appropriate model for estimating the costs of Vietnamese manufacturers. The model accounts for the amount of each manufacturing input required to produce one pound of frozen warmwater shrimp. The main factor is raw warmwater shrimp, however, other factors of production included in the NV calculation are: tripolyphosphate, labor, electricity, water, overhead and packing materials.
The petitioner selected India as the surrogate country. The petitioner argued that, pursuant to section 773(c)(4) of the Act, India is an appropriate surrogate because it is a market-economy country
In accordance with section 773(c)(4) of the Act, the petitioner valued factors of production, where possible, on reasonably available, public surrogate country data. To value certain raw materials, the petitioner used official Indian government import statistics, excluding those values from countries previously determined by the Department to be NME countries and excluding imports into India from Indonesia, Korea and Thailand, in light of the prevalence of export subsidies in those countries.
To value raw warmwater shrimp, the major input, the petitioner used a market researcher to determine the cost of shrimp in India. The research was conducted in Mumbai, India and completed in December 2003.
The petitioner calculated surrogate financial ratios (depreciation, SG&A and profit) using the 2001 financial statements of two Indian seafood processors that process marine products. To calculate a single surrogate ratio for overhead, depreciation, SG&A, and profit, the petitioner calculated a simple average for the two Indian seafood processors. In its calculation of the surrogate profit and financial expenses, the petitioner included a zero value expense when averaging the experiences of the two Indian seafood processors.
However, it is the Department's practice not to average a zero expense into the calculation of the surrogate financial ratios.
Based on comparisons of EP to NV, calculated in accordance with section 773(c) of the Act, the estimated recalculated dumping margins for certain frozen and canned warmwater shrimp from Vietnam range from 25.76 percent to 93.13 percent.
Based on the data provided by the petitioner, there is reason to believe that imports of certain frozen and canned warmwater shrimp from Brazil, Ecuador, India, Thailand, the PRC and Vietnam are being, or are likely to be, sold at less than fair value.
With regard to Brazil, Ecuador, India, Thailand, the PRC, and Vietnam, the petitioner alleges that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the individual and cumulated imports of the subject merchandise sold at less than NV.
The petitioner contends that the industry's injured condition is evident in the declining trends in market share, net operating profits, net sales volumes and revenues, and production employment. These factors apply to both the firms that produce frozen and canned warmwater shrimp, and the harvesters and growers of the raw agricultural product, wild-caught and farm-raised warmwater shrimp. The allegations of injury and causation are supported by relevant evidence including information from U.S. import statistics, the National Marine Fisheries Service, a commodity news reporting agency, industry surveys, and press reports from a variety of sources. We have assessed the allegations and supporting evidence regarding material injury and causation, and we have determined that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation.
Based upon our examination of the petitions on certain frozen and canned warmwater shrimp, we have found that they meet the requirements of section 732 of the Act. Therefore, we are initiating antidumping duty investigations to determine whether imports of certain frozen and canned warmwater shrimp from Brazil,
In accordance with section 732(b)(3)(A) of the Act, a copy of the public version of each petition has been provided to the representatives of the governments of Brazil, Ecuador, India, Thailand, the PRC, and Vietnam. We will attempt to provide a copy of the public version of each petition to each exporter named in the petitions, as provided for under 19 CFR 351.203(c)(2).
We have notified the ITC of our initiations as required by section 732(d) of the Act.
The ITC will preliminarily determine no later than February 17, 2004, whether there is a reasonable indication that imports of certain frozen and canned warmwater shrimp from Brazil, Ecuador, India, Thailand, the PRC and Vietnam are causing material injury, or threatening to cause material injury, to a U.S. industry. A negative ITC determination for any country will result in the investigation being terminated with respect to that country; otherwise, these investigations will proceed according to statutory and regulatory time limits.
This notice is issued and published pursuant to section 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Preliminary Results of Antidumping Duty Administrative Review.
January 27, 2004.
Vicki Schepker or Carol Henninger at (202) 482-1756 or (202) 482-3003, respectively; AD/CVD Enforcement Office 5, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue NW, Washington, DC 20230.
The Department of Commerce is conducting an administrative review of the antidumping duty order on low enriched uranium from France for the period July 13, 2001 to January 31, 2003 (the POR). We preliminarily determine that sales of subject merchandise by Eurodif, S.A. (Eurodif), Compagnie Générale Des Matiéres Nucléaires (COGEMA) and COGEMA, Inc. (collectively, COGEMA/Eurodif or the respondent), have been made below normal value (NV). If these preliminary results are adopted in our final results, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on appropriate entries based on the difference between the constructed export price (CEP) and the NV. Interested parties are invited to comment on these preliminary results.
On February 13, 2002, the Department issued an antidumping duty order on low enriched uranium from France.
On April 4, 2003, the Department issued its antidumping questionnaire to COGEMA/Eurodif. We received timely responses to all sections of the initial antidumping questionnaire and associated supplemental questionnaires. Based on a timely allegation filed by the petitioner on June 20, 2003, we initiated a major input investigation with regard to the respondent's purchases of electricity from an affiliated party. On October 27, 2003, the Department published a notice extending the time limit for the preliminary results.
The product covered by this order is all low enriched uranium (LEU). LEU is enriched uranium hexafluoride (UF6) with a U235 product assay of less than 20 percent that has not been converted into another chemical form, such as UO2, or fabricated into nuclear fuel assemblies, regardless of the means by which the LEU is produced (including LEU produced through the down-blending of highly enriched uranium).
Certain merchandise is outside the scope of this order. Specifically, this order does not cover enriched uranium hexafluoride with a U235 assay of 20 percent or greater, also known as highly enriched uranium. In addition, fabricated LEU is not covered by the scope of this order. For purposes of this order, fabricated uranium is defined as enriched uranium dioxide (UO2), whether or not contained in nuclear fuel rods or assemblies. Natural uranium concentrates (U3O8) with a U235 concentration of no greater than 0.711 percent and natural uranium concentrates converted into uranium hexafluoride with a U235 concentration of no greater than 0.711 percent are not covered by the scope of this order.
Also excluded from this order is LEU owned by a foreign utility end-user and imported into the United States by or for such end-user solely for purposes of conversion by a U.S. fabricator into uranium dioxide (UO2) and/or
The merchandise subject to this order is classified in the Harmonized Tariff Schedule of the United States (HTSUS) at subheading 2844.20.0020. Subject merchandise may also enter under 2844.20.0030, 2844.20.0050, and 2844.40.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
As provided in section 782(i)(3) of the Tariff Act of 1930, as amended (the Act), we verified information provided by COGEMA/Eurodif from October 6-14, 2003, October 20-24, 2003, and October 29-30, 2003. We used standard verification procedures, including on-site inspection of the respondents facilities and examination of relevant sales and financial records.
To determine whether sales of LEU from France were made in the United States at less than fair value, we compared the constructed export price (CEP) to the constructed value (CV), as described in the
In accordance with section 777A(d)(1)(A)(i) of the Act, we calculated CEPs and compared them to CV.
We note that during the POR, the respondent sold LEU pursuant to contracts in which it undertook to manufacture and deliver LEU for a cash payment covering only the value of the enrichment component; for the natural uranium feedstock component, the respondent received an amount of natural uranium equivalent to the amount used to produce the LEU shipped (so-called separative work unit (SWU)
In accordance with section 772 of the Act, we calculated a CEP. Section 772(b) of the Act defines CEP as the price at which the subject merchandise is first sold in the United States before or after the date of importation by or for the account of the producer or exporter of the merchandise or by a seller affiliated with the producer or exporter, to an unaffiliated purchaser, as adjusted under sections 772(c) and (d) of the Act. Consistent with this definition, we found that COGEMA/Eurodif made CEP sales during the POR because the sales were made for the account of COGEMA/Eurodif by the respondent's U.S. subsidiary, COGEMA, Inc., in the United States.
We calculated CEP based on packed prices charged to the first unaffiliated customer in the United States. For all sales, which involved payments on a SWU basis, we translated the prices to an LEU basis by adding a value for the uranium feedstock used in the production of the LEU. This value was derived from the respondent's reported entered value of feed, which was based on publicly available price information used for customs entry purposes.
Section 351.401(i) of the Department's regulations provide that the date of sale will normally be the date of invoice, unless the material terms of sale are set on some other date.
In the instant case, the material terms of sale are set on the date of the contract with the U.S. customer. Therefore, we based the date of sale on that date.
The sales examined in this review represented merchandise which entered the United States during the POR. We have not included deliveries made of merchandise entered during the provisional measures gap period
We made deductions from the starting price for movement expenses in accordance with section 772(c)(2)(A) of the Act. These include foreign inland freight from the plant to the port of exit, international freight, marine insurance, charges for shipment of samples, transportation expenses for the movement of customer feed, and port charges. We also deducted any discounts from the starting price.
In accordance with section 772(d)(1) of the Act, we deducted from the starting price those selling expenses that were incurred in selling the subject merchandise in the United States, including indirect selling expenses, credit expense, and inventory carrying costs.
In addition, in accordance with 772(d)(3) and 772(f) of the Act, we made
Finally, we made additional adjustments to CEP based upon our findings at verification.
Section 773(a)(1) of the Act directs that NV be based on the price at which the foreign like product is sold in the home market, provided that the merchandise is sold in sufficient quantities (or value, if quantity is inappropriate) and that there is no particular market situation that prevents a proper comparison with the export price (EP) or CEP. The statute contemplates that quantities (or value) will normally be considered insufficient if they are less than five percent of the aggregate quantity (or value) of sales of the subject merchandise to the United States.
Pursuant to section 773(a)(1) of the Act, because COGEMA/Eurodif's aggregate volume of home market sales of the foreign like product was greater than five percent of its aggregate volume of U.S. sales of the subject merchandise, we determined that the home market was viable. However, COGEMA/Eurodif has only one customer in the home market, an affiliated party. Because we had no independent means to determine whether prices for sales to this customer were made at arm's length, for purposes of this review, we have based NV on CV. See sections 351.403 and 351.405 of the Department's regulations. Adjustments made in deriving CV are described in detail in the
Section 773(a)(4) of the Act provides that where NV cannot be based on comparison market sales, NV may be based on CV. Section 773(e) of the Act provides that CV shall be based on the sum of the cost of materials and fabrication for the foreign like product, plus amounts for selling, general, and administrative expenses (SG&A), profit, and U.S. packing costs. In accordance with section 773(e)(2)(B)(iii) of the Act, we based general and administrative (G&A) expenses on amounts derived from Eurodif's financial statements. We based financial expenses on the financial statements of COGEMA's parent company, AREVA, which represents the highest level of consolidation for Eurodif. For selling expenses, we used information on Eurodif's indirect selling expenses from its questionnaire response and from information obtained at verification. Where appropriate, we made circumstance of sale (COS) adjustments to CV in accordance with section 773(a)(8) of the Act and 19 CFR 351.410 of the Department's regulations. For a further discussion of the calculation of indirect selling expenses and a COS adjustment of a proprietary nature, see the Preliminary Calculation Memorandum.
Because we could not determine whether COGEMA/Eurodif's sales in France were made in the ordinary course of trade in the home market, we calculated profit in accordance with section 773(e)(2)(B)(iii) of the Act and the Statement of Administrative Action (SAA) at 841. We based CV profit on the profit rate of Eurodif's sales of LEU in all markets other than the United States and France.
In addition to these adjustments, we included in the reported cost the Public Service Electricity Generation Fund tax (the “FSPPE levy”) accrued by Eurodif and recorded in the company's books.
In this case, electricity is considered a major input that Eurodif obtained from its affiliated supplier, Électricité de France (EdF). See Memorandum from Ernest Gziryan, Senior Accountant, to Gary Taverman, Director, Office 5, Re: Petitioner's Allegation of Purchases of Major Inputs From Affiliated Parties at Prices Below the Affiliated Parties' Cost of Production, dated August 13, 2003. Section 773(f)(3) of the statute states that “in the case of a transaction between affiliated persons involving the production by one of such persons of a major input, the administering authority may determine the value of the major input on the basis of the information available regarding such cost of production, if such cost is greater than the amount that would be determined for such input under paragraph (2).” Section 351.407(b) of the Department's regulations states that in applying the major input rule, the Department will normally include the higher of the transfer price between affiliates, the market price for the input, or the affiliate's cost of production (COP) for the purchased input. As such, we evaluated the affiliated supplier's reported electricity COP. We found that EdF's books reflected a calculated cost based on a marginal costing methodology and resulted in different costs for the same physically identical product - electricity. As it is the Department's long standing practice to calculate a single average cost for producing products of identical physical characteristics, for the preliminary results we adjusted the reported electricity COP by calculating one average POR cost of producing electricity and used it in our major input analysis. We adjusted the reported value of electricity purchased from EdF to the higher of the transfer price, the market price or EdF's cost of production. Due to the proprietary nature of this information, see the Constructed Value Calculation Adjustments Memorandum for more details.
In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (LOT) as the EP or CEP transaction. The NV LOT is that of the starting-price sales in the comparison market or, when NV is based on CV, that of the sales from which we derive SG&A expenses and profit. For EP, the U.S. LOT is also the level of the starting-price sale, which is usually from exporter to importer. For CEP, it is the level of the constructed sale from the exporter to the importer.
To determine whether NV sales are at a different LOT than EP or CEP, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison-market sales are at a
In implementing these principles in this review, we obtained information from the respondent about the marketing stages involved in the reported U.S. sales, as well as in the home market, including a description of the selling activities performed by the respondent for each channel of distribution. Given that all U.S. sales were CEP sales, we considered only the selling activities reflected in the price after the deduction of expenses and profit under section 772(d) of the Act.
In the U.S. market, the respondent sells to utility customers. After deducting expenses associated with the selling activities reflected in the price under section 772(d) of the Act (
Selling expenses for CV were based on Eurodif's selling expenses exclusive of expenses allocated to Eurodif's U.S. sales. Eurodif performed all the selling activities for sales to its sole customer in the French market. Therefore, we found a single LOT of trade in the home market.
Eurodif generally performs the same kinds of selling functions in both markets. We note that for several of the thirteen reported categories of selling functions, Eurodif stated that it performs the functions to the same degree for both the CEP and the home market LOT. The respondent described different degrees of selling activities for its home market sales and sales to its U.S. affiliate in the following categories: sales forecasting, visiting customers/potential customers, negotiating contracts, receiving and booking orders/order processing, collecting payments/invoice follow-up, and customer follow-up. We reviewed each of the selling functions at verification and found that Eurodif performs the same level of selling activity for receiving and booking orders/order processing and collecting payments/invoice follow-up for both home market and CEP sales.
We made currency conversions into U.S. dollars in accordance with section 773A of the Act, based on exchange rates in effect on the date of the U.S. sale, as certified by the Federal Reserve Bank.
As a result of this review, we preliminarily determine that the following weighted-average margin exists for the period July 13, 2001, through January 31, 2003:
The Department will disclose calculations performed in accordance with 19 CFR 351.224(b). An interested party may request a hearing within 30 days of publication of these preliminary results. See 19 CFR 351.310(c). Any hearing, if requested, will be held 44 days after the date of publication, or the first working day thereafter. Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of these preliminary results. Rebuttal briefs and rebuttals to written comments, limited to issues raised in such briefs or comments, may be filed no later than 37 days after the date of publication. Parties who submit arguments are requested to submit with the argument (1) a statement of the issue,
(2) a brief summary of the argument, and (3) a table of authorities. Further, the parties submitting written comments should provide the Department with an additional copy of the public version of any such comments on diskette. The Department will issue the final results of this administrative review, which will include the results of its analysis of issues raised in any such comments, within 120 days of publication of these preliminary results.
Upon completion of this administrative review, pursuant to 19 CFR 351.212(b), the Department will calculate an assessment rate on all appropriate entries. We will calculate importer-specific duty assessment rates on the basis of the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of the examined sales for that importer. Where the assessment rate is above
The following deposit rates will be effective upon publication of the final results of this administrative review for all shipments of LEU from France entered, or withdrawn from warehouse,
This notice serves as a preliminary 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 entities 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 determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
January 27, 2004.
Catherine Bertrand or Peter Mueller, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone: (202) 482-3207 and (202) 482-5811 respectively.
We preliminarily determine that tetrahydrofufuryl alcohol (“THFA”) from the People's Republic of China (“PRC”) is being, or is likely to be, sold in the United States at less than fair value (“LTFV”), as provided in section 733 of the Tariff Act of 1930, as amended (“the Act”). The estimated margins of sales at LTFV are shown in the “Suspension of Liquidation” section of this notice.
On June 23, 2003, the Department of Commerce (“Department”) received a petition on THFA from the PRC filed in proper form by Penn Specialty Chemicals, Inc. (“petitioner”).
On August 11, 2003, the United States International Trade Commission (“ITC”) issued its affirmative preliminary determination that there is a reasonable indication that an industry in the United States is threatened with material injury by reason of imports from the PRC of THFA.
On July 23, 2003, the Department requested quantity and value (“Q&V”) information from four PRC companies that were identified in the
On August 12, 2003, the Department requested Q&V information from the three PRC companies which were submitted as part of the embassy list, (
On August 28, 2003, the Department issued to ZHC the Section A, C, D, and E of the Department's non-market economy antidumping duty questionnaire. On August 29, 2003, the Department issued to the other responding company, QWTC, Section A, C, D, and E of the Department's non-market economy antidumping duty questionnaire. In addition, on September 10, 2003, the Department sent the Ministry of Commerce in the PRC and the Embassy of the PRC in Washington a copy of the Section A, C, D, and E of the Department's non-market economy antidumping duty questionnaire.
On September 4, 2003, the Department requested comments on surrogate country and factor valuation information in order to have sufficient time to consider this information for the preliminary determination. On September 18, 2003, the petitioner submitted comments concerning the surrogate country selection.
On October 1, 2003, the Department received Section A responses from ZHC and QWTC. On October 10, 2003, the petitioner submitted comments concerning ZHC's and QWTC's Section A responses. On October 10, 2003, the Department received ZHC's Section C and D response and on October 14, 2003, the Department received QWTC's Section C response. On October 24, 2003, the petitioner submitted comments concerning ZHC's Section C and D response.
On October 27, 2003, the Department issued its respondent selection memorandum, selecting QWTC as the mandatory respondent to be investigated.
On October 30, 2003, the Department issued a supplemental Section A questionnaire to QWTC. On November 28, 2003, the Department received QWTC's response to the Department's supplemental Section A. On December 11, 2003, the petitioner submitted comments concerning QWTC's November 28, 2003 supplemental Section A response.
On November 14, 2003 the Department issued to QWTC a supplemental containing additional Section A questions and also Section C questions. On December 5, 2003, the Department received QWTC's response to the Department's Section A and C questionnaire.
On November 10, 2003, the Department issued its surrogate country memorandum, selecting India as the surrogate country.
On November 18, 2003, the Department issued a Section D supplemental questionnaire to QWTC. On December 3, 2003, the Department received QWTC's response to the Department's November 18, 2003 Section D supplemental. On December 11, 2003, the petitioner submitted comments concerning QWTC's December 3, 2003 Section D supplemental response.
On November 19, 2003 the Department issued an additional questionnaire to QWTC regarding QWTC's Section C and D responses. On December 10, 2003, the Department received QWTC's response to the Department's November 19, 2003 Section C and D questionnaire.
On November 19, 2003, the Department sent a cable to the United States Foreign Commercial Service (“FCS”) posts in India, requesting that they provide publicly available financial statements for six manufacturers of furfural and furfuryl alcohol in India. On January 4, 2004, the Department received a cable from the FCS in India relaying that it had contacted six companies and that of the six only two manufacturers of furfural responded with their financial statements. Both sets of financials were sent by facsimile to the Department, the first set on December 16, 2003, and the second set on January 5, 2004. Of the two companies providing financial statements, only Delta Agro Chemical Co., Ltd., the company that submitted financials on January 5, 2004, had financial statements that were publicly available.
On November 20, 2003, the Department published a postponement of the preliminary antidumping duty determination on THFA from the PRC, postponing the preliminary determination from November 30, 2003 to January 19, 2004.
On December 15, 2003, the Department issued a further Section A, C, and D supplemental questionnaire to QWTC. On December 29, 2003, the Department received QWTC's response to the Department's December 15, 2003 Section A, C, and D supplemental questionnaire.
On December 16, 2003, the petitioner submitted comments concerning the valuation of the factors of production.
On December 19, 2003, the Department issued an additional supplemental Section D questionnaire. On January 6, 2004, the Department received QWTC's response to the Department's December 19, 2003 supplemental Section D questionnaire.
The POI is October 1, 2002 through March 31, 2003. This period corresponds to the two most recent fiscal quarters prior to the month of the filing of the Petition (June 23, 2003).
For the purpose of this investigation, the product covered is tetrahydrofurfuryl alcohol (C5H10O2) (“THFA”). THFA, a primary alcohol, is a clear, water white to pale yellow liquid. THFA is a member of the heterocyclic compounds known as furans and is miscible with water and soluble in many common organic solvents. THFA is currently classified in the Harmonized Tariff Schedules of the United States (“HTSUS”) under subheading 2932.13.00.00. Although the HTS subheadings are provided for convenience and for the purposes of the CBP, the Department's written description of the merchandise under investigation is dispositive.
Section 777A(c)(1) of the Act, directs the Department to calculate individual dumping margins for each known exporter and producer of the subject merchandise.
The Department selected as the mandatory respondent the exporter QWTC, as it accounted for the largest volume of the subject merchandise pursuant to section 777(c)(2)(B) of the Act.
The Department need not limit the number of respondents to be examined in this investigation, as the Department found that it had the resources available to investigate the one respondent, QWTC, in the above-captioned case.
For purposes of initiation, the petitioner submitted LTFV analysis for the PRC as a non-market economy.
Furthermore, no interested party has requested that the THFA industry in the PRC be treated as a market-oriented industry and no information has been provided that would lead to such a determination. Therefore, we have not treated the THFA industry in the PRC as a market-oriented industry in this investigation.
When the Department is investigating imports from an NME country, section 773(c)(1) of the Act directs it to base normal value, in most circumstances, on the NME producer's factors of production, valued in a surrogate market economy country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, the Department, in valuing the factors of production, shall utilize, to the extent possible, the prices or costs of factors of production in one or more market economy countries that: (1) are at a level of economic development comparable to that of the NME country; and, (2) are significant producers of comparable merchandise. The sources of the surrogate factor values are discussed under the normal value section below and in
The Department has determined that India, Pakistan, Indonesia, Sri Lanka, and the Philippines are countries comparable to the PRC in terms of economic development.
The Department used India as the primary surrogate country, and, accordingly, has calculated normal value using Indian prices to value the PRC producers' factors of production, when available and appropriate. Additionally, the Department has used Indonesia as the secondary surrogate country for certain factors of production.
In accordance with 19 CFR 351.301(c)(3)(i), for the final determination in an antidumping investigation, interested parties may submit publicly available information to value factors of production within 40 days after the date of publication of this preliminary determination.
In an NME proceeding, the Department presumes that all companies within the country are subject to governmental control and should be assigned a single antidumping duty rate unless the respondent demonstrates the absence of both
The Department's separate rate test is not concerned, in general, with macroeconomic/ border-type controls (
To establish whether a firm is sufficiently independent from government control to be entitled to a separate rate, the Department analyzes each exporting entity under a test
The Department considers the following
The mandatory respondent has placed on the record statements and documents to demonstrate absence of
QWTC reported that it is required to obtain a business license, which is issued by the Qingdao Industry and Commercial Administrative Bureau. According to QWTC, its business license allows a business entity, such as itself, to operate in the PRC and facilitates QWTC's export and import business based in the PRC. In addition, QWTC submitted the “Administration Regulations of Free Trade Zone, Qingdao, Shangong”, (“
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.
The evidence placed on the record of this investigation by QWTC demonstrates an absence of government control, both in law and in fact, with respect to QWTC's exports of the merchandise under investigation. As a result, for the purposes of this preliminary determination, we are granting a separate, company-specific rate to QWTC, the exporter which shipped the subject merchandise, THFA, to the United States during the POI. For a full discussion of separate rates,
For a discussion of the PRC-Wide rate
Section 351.401(i) of the Department's regulations state that “in identifying the date of sale of the subject merchandise or foreign like product, the Secretary normally will use the date of invoice, as recorded in the exporter or producer's records kept in the normal course of business.” After examining the sales documentation placed on the record by the respondent, we preliminarily determine that invoice date is the most appropriate date of sale for the respondent. We made this determination because, at this time, there is not enough evidence on the record to determine whether the contracts used by the respondent establish the material terms of sale to the extent required by our regulations in order to rebut the presumption that invoice date is the proper date of sale.
To determine whether sales of THFA to the United States by QWTC were made at less than fair value, we compared EP to normal value, as described in the “Export Price” and “Normal Value” sections of this notice. In accordance with section 777A(d)(1)(A)(i) of the Act, we calculated weighted-average EPs.
In accordance with section 772(a) of the Act, EP is the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under subsection (c) of the Act.
We calculated EP for QWTC based on delivered prices to unaffiliated purchasers in the United States. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act. These included foreign inland freight from the plant to the port of exportation, ocean freight, and marine insurance, where appropriate.
Section 773(c)(1) of the Act provides that the Department shall determine the normal value using a factors-of-production methodology if: (1) the merchandise is exported from an non-market economy country; and (2) the information does not permit the calculation of normal value using home-market prices, third-country prices, or constructed value under section 773(a) of the Act.
As the basis for normal value, the respondents in this investigation provided integrated factors of production data from the raw material input stage to the final product stage (
Our general policy, consistent with section 773(c)(1)(B) of the Act, is to value the factors of production that a respondent uses to produce the subject merchandise. If the NME respondent is an integrated producer, we take into account the factors utilized in each stage of the production process. For example, in the case of preserved canned mushrooms produced by a fully integrated firm, the Department valued the factors used to grow the mushrooms, the factors used to further process and preserve the mushrooms, and any additional factors used to can and package the mushrooms, including any used to manufacture the cans (if produced in-house).
There are, however, two limited exceptions to this general rule. First, in some cases a respondent may report factors used to produce an intermediate input that accounts for a small or insignificant share of total output. The Department recognizes that, in those cases, the increased accuracy in our overall calculations that would result from valuing (separately) each of those factors may be so small so as to not justify the burden of doing so. Therefore, in those situations, the Department would value the intermediate input directly.
Second, in certain circumstances, it is clear that attempting to value the factors used in a production process yielding an intermediate product would lead to an inaccurate result because a significant element of cost would not be adequately accounted for in the overall factors buildup. For example, in the
In this investigation, we preliminarily determine that the exceptions described above do not apply at this time. However, after carefully reviewing and analyzing the information submitted by the respondent, the Department has found that the data pertaining to the furfural and furfuryl alcohol stages of production cannot be used for purposes of the preliminary determination. In the original Section D questionnaire and in one subsequent supplemental questionnaire, the Department requested multi-stage input information from the respondent. In response, the Department received data which was inadequate for valuing the factors of production consumed in the earlier stages of the production processes (
In light of these concerns, we have not used the multi-stage factor data for the preliminary determination and have incorporated, instead, the value of the furfuryl alcohol input used at the final stage of production. Subsequent to the preliminary determination, we will clarify the factors data for the furfural and furfuryl alcohol stages of production that the respondent has reported. If we make a change in the methodology and use the factor information for the various stages previous to the final determination, we will release to interested parties for comment a preliminary calculation sheet and analysis memorandum using that methodology.
The factors of production from the furfuryl alcohol stage to THFA includes: (1) hours of labor required; (2) quantities of raw materials employed; (3) amounts of energy and other utilities consumed; (4) costs associated with packing; and (5) representative capital costs. We calculated normal value based on factors of production, reported by the respondent, for materials, energy, labor, and packing. Where applicable, we deducted from the respondent's normal value the value of by-products sold during the POI. For a further discussion, please
Section 773(c)(1) of the Act provides that, in the case of an NME, the Department shall determine normal value using a factors of production methodology if: (1) the merchandise is exported from an NME, and (2) the information does not permit the calculation of normal value using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. Because information on the record does not permit the calculation of NV using home-market prices, third-country prices, or constructed value, and no party has argued otherwise, we calculated NV based on factors of production in accordance with sections 773(c)(3) and (4) of the Act and 19 CFR 351.408(c).
Because we are using surrogate country factors of production prices to determine normal value, section 773(c)(4) of the Act requires that the Department use values from a market economy (surrogate) country. For this case we have selected India as the primary market economy (surrogate) country.
We selected, where possible, publicly available values from India which were: (1) average non-export values; (2) representative of a range of prices within the POI or most contemporaneous with the POI; (3) product-specific; and, (4) tax-exclusive. Where necessary, we have excluded import data from an NME country (
In accordance with section 773(c) of the Act, we calculated normal value based on factors of production reported by respondent for the POI. To calculate normal value, the reported per-unit factor quantities were multiplied by publicly available surrogate values. In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. We selected information that represented cumulative values for the POI, for inputs classified according to the Harmonized Commodity Description and Coding System (“HTS”). For unit values initially reported in U.S. dollars (“USD”) no conversion was necessary. For unit values initially reported in Indian rupees, we converted from rupees to USD using the average exchange rate for the POI.
To value furfuryl alcohol, we relied upon contemporaneous Indian import values of “furfuryl alcohol and tetrahydrofurfuryl alcohol” under the Indian Customs' heading of “29321300” obtained from the World Trade Atlas online, which notes that its data was published by the DGCI&S, Ministry of Commerce of India, May 2003. This data was reported in USD. Consistent with the Department's practice, import data from both NMEs (
As this basket category includes the subject merchandise, we recognize that a more appropriate surrogate value for furfuryl alcohol may be required. However, at the time of this preliminary determination, it is the most appropriate surrogate value that we can locate. Accordingly, we are requesting comments on issues concerning the calculation and selection of surrogate values. In particular, we request that parties provide comments on the calculations for furfuryl alcohol and any suggestions for alternative calculations. In accordance with 19 CFR 351.301(c)(3) of the Department's regulations, interested parties may submit publicly available information to value the factors of production for purposes of the final determination within 40 days after the date of publication of this preliminary determination.
For steam, the Department relied upon the values of the raw material inputs used to make steam, (
To value coal, we relied upon contemporaneous Indian import values of “other coal” under the Indian Customs' heading of “27011909” obtained from the
To value hydrogen, we relied upon contemporaneous import values of “hydrogen,” obtained from Indonesia Statistics, 2002 as published on
To value water, we used the water tariff rate, as reported on the Municipal Corporation of Greater Mumbai. This factor was reported in Indian rupees and converted into USD using the average exchange rate for the POI. Because this data is contemporaneous with the POI, no adjustment has been made for inflation/deflation.
To value electricity, we used the 2000 total average price per kilowatt hour (kwh) for “Electricity for Industry” as reported in the International Energy Agency's publication,
To value packing, we used a surrogate value, “Tank, ET 50-300 Liter, Others,” derived from India import statistics as published by the
To value truck freight, we used an average truck freight cost based on Indian market truck freight rates on a rupees per-metric ton per kilometer basis published in the
In accordance with the decision of the Court of Appeals for the Federal Circuit in
To value factory overhead, selling, general and administrative expenses (“SG&A”), and profit, the Department did not use the data from the financial statements of an Indian company, Delta Agro Chemicals Ltd. (“Delta”), because although it appeared initially to produce the comparable merchandise furfuryl alcohol as one of its main products, the FCS's cable, received on January 4, 2004, and a previous email, received on December 30, 2003, reported that Delta only manufactured the feedstock product, furfural. For a copy of the cable and email,
For labor, consistent with 19 CFR 351.408(c)(3), we used the regression-based wage rate at Import Administration's home page, Import Library, Expected Wages of Selected NME Countries, revised in September 2002, and corrected in February 2003, (
When determining whether an input should be treated as a factor of production or as an overhead item, the Department's practice is to consider inputs as part of overhead only when they are small in value relative to the total cost of manufacturing.
Further, including the catalyst as a factor of production could, in this case, result in double counting the cost in one of two ways: (1) since the amount of the catalyst is insignificant, it is most likely accounted for as an indirect material and included in the surrogate company's overhead costs; or (2) if the surrogate company capitalizes the cost of the catalyst, then an allocated amount is already included in the overhead costs. If a company purchases property, plant or piece of equipment that benefits future periods, then it can capitalize the asset in accordance with its internal policy. Typically, companies set up an internal policy that dictates the threshold for capitalizing assets. Normally, if an asset is being depreciated, then it is considered to have a life in excess of one year and the cost is allocated over the life of the asset and is considered to be a part of fixed overhead.
The weighted-average dumping margins are as follows:
As provided in section 782(I)(1) of the Act, we intend to verify all company information relied upon in making our final determination.
We will disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b).
In accordance with section 733(d) of the Act, we are directing the CBP to suspend liquidation of all imports of subject merchandise, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
In accordance with section 733(f) of the Act, we have notified the ITC of the Department's preliminary affirmative determination of sales at less than fair value. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of THFA, or sales (or the likelihood of sales) for importation, of the subject merchandise.
In accordance with 19 CFR 351.301(c)(3) of the Department's regulations, interested parties may submit publicly available information to value the factors of production for purposes of the final determination within 40 days after the date of publication of this preliminary determination. Case briefs or other written comments may be submitted to the Assistant Secretary for Import Administration no later than fifty days after the date of publication of this notice, and rebuttal briefs, whose content is limited to issues raised in case briefs, no later than fifty-five days after the date of publication of this preliminary determination.
In accordance with section 774 of the Act, we will hold a public hearing, if requested , to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs.
If a request for a hearing is made, we will tentatively hold the hearing two days after the deadline of submission of rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230, at a time and location to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days after the date of publication of this notice.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Caribbean Fishery Management Council's Habitat Advisory Panel (HAP), and the Scientific and Statistical Committee (SSC) will hold meetings.
The HAP/SSC meetings will be held on February 11-12, 2004. The HAP/SSC will convene on Wednesday, February 11, 2004, from 10 a.m. until 5 p.m., and will reconvene on Thursday, February 12, 2004, from 9 a.m. to 12 noon, approximately.
The meetings will be held at the Embassy Suites Hotel, #8000, Tartak St., Isla Verde, Carolina, Puerto Rico 00979.
Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918-1920, telephone: (787) 766-5926.
The HAP and the SSC will meet to discuss the items contained in the following agenda:
1. Review draft response from the Caribbean Council and NOAA Fisheries to public comments, and recommend changes as appropriate to the essential fish habitat/environmental impact statement (EFH/EIS).
2. Review draft revisions to EIS, resulting from public comments and internal review, and recommend changes as appropriate to the EFH/EIS.
3. Other.
The meetings are open to the public, and will be conducted in English. Fishers and other interested persons are invited to attend and participate with oral or written statements regarding agenda issues.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. For more information or request for sign language interpretation and/other auxiliary aids, please contact Mr. Miguel A. Rolon, Executive Director, Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico, 00918-1920, telephone (787) 766-5926, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Enforcement Oversight Committee and Advisory Panel in February, 2004. Recommendations from the committee will be brought to the full Council for formal consideration and action, if appropriate.
The meeting will held on Thursday, February 12, 2004 at 9:30 a.m.
The meeting will be held at the NMFS Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930; telephone: (978) 281-9300.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The panels will review and approve the Herring Enforcement Analysis and discuss other business.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
Consumer Product Safety Commission.
Notice.
It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the
Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by February 11, 2004.
Persons wishing to comment on this Settlement Agreement should send written comments to Comment 04-C0002, Office of the Secretary, Consumer Product Safety Commission, Washington, DC 20207.
Michelle F. Gillice, Trial Attorney, Office of Compliance, Consumer Product Safety Commission, Washington, DC 20207; telephone (301) 504-7667.
The text of the Agreement and Order appears below.
1. E&B Giftware, LLC enters into this Settlement Agreement and Order (hereinafter, “Settlement Agreement” or “Agreement”) with the staff of the Consumer Product Safety Commission (the “Commission”), and agrees to the entry of the attached Order incorporated by reference herein. The Settlement Agreement settles the Commission staff's allegations set forth below.
2. The Commission is an independent federal regulatory agency responsible for the enforcement of the Consumer Product Safety Act (“CPSA”), 15 U.S.C. 2051
3.(a) E&B Giftware, LLC, established in June 2000, is a limited liability company, organized and existing under the laws of the State of Delaware, with its principal office located at 4 Executive Plaza, Yonkers, New York, 10701.
(b) Sun-It Corporation (“Sun-It”) was a partially-owned subsidiary of E&B Giftware, Inc. (“Giftware, Inc.”).
(c) E&B Giftware, Inc. owned 80% of the stock of Sun-It at the time of the events discussed in this Agreement. Without admitting that it is a successor in interest, E&B Giftware, LLC (hereinafter, “Respondent”) agrees to be bound by and comply with this Settlement Agreement and Order.
4. Between February 1997 and September 1997, Sun-It (a subsidiary of E&B Giftware, Inc.) manufactured and distributed approximately 47,000 “Money to Burn Torch” citronella candles (“candles”), style number 330N.
5. The candles were sold to and/or used by consumers for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise and are, therefore, “consumer products” as defined in section 3(a)(1) of the CPSA, 15 U.S.C. 2052(a)(1). Sun-It was a “manufacturer” and “distributor” of the candles which were “distributed into commerce” as those terms are defined in sections 3(a)(4), (5), (11) and (12) of the CPSA, 15 U.S.C. 2052(a)(4), (5), (11) and (12).
6. The candle is defective because the wrapper which surrounds the candle traps a pool of hot wax which becomes super heated. Consumers were exposed to a burn risk because the candles could release molten wax when the consumer blew on the candle in an attempt to extinguish it, bumped into the candle, or when the candle unexpectedly flared up.
7. Between May 1997 and October 1997, E&B Giftware, Inc. through its subsidiary Sun-It, received notice of fourteen incidents in which consumers suffered serious burns. Several consumers reported that the burns left permanent scarring. One consumer reported receiving third degree burns.
8. In the fall of 1997, E&B Giftware, Inc. approved of Sun-It's decision to stop sale of the candles and notify retailers to return candles in their inventory. Sun-It contacted the retailers to recall the candles.
9. Respondent claims that 13,424 candles were returned and subsequently destroyed along with 3,382 units of unshipped inventory. E&B Giftware, Inc. received notice of another three incidents after its unilateral recall. In one of these post recall incidents, a consumer reported receiving third degree burns.
10. On August 24, 1999, the Commission contacted E&B Giftware, Inc. regarding two incidents that it had become aware of and requested that E&B Giftware, Inc. submit a full report pursuant to Section 15 of the CPSA.
11. E&B Giftware, Inc. provided a full report on September 27, 1999.
12. By the time E&B Giftware, Inc. initiated a stop sale and recall of inventory in the fall of 1997, it had obtained information which reasonably supported the conclusion that the candles described in paragraph 4 above contained a defect which could create a substantial product hazard or created an unreasonable risk of serious injury or death, but failed to report such information in a timely manner to the Commission as required by sections 15(b)(2) and (3) of the CPSA, 15 U.S.C. 2064(b)(2), (3).
13. By failing to provide the information to the Commission in a timely manner as required by section 15(b) of the CPSA, 15 U.S.C. 2064(b), E&B Giftware, Inc. violated 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4).
14. E&B Giftware, Inc. committed this failure to report to the Commission “knowingly” as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d), thus, subjecting E&B Giftware to civil penalties under section 20 of the CPSA, 15 U.S.C. 2069.
15. Respondent denies the staff's allegations in paragraph 6 that the candles were defective and that it violates the CPSA as set forth in paragraphs 12 through 14.
16. The Consumer Product Safety Commission has jurisdiction over this matter and over E&B Giftware, LLC under the Consumer Product Safety Act, 15 U.S.C. 2051
17. This Agreement is entered into for settlement purposes only and does not constitute an admission by Respondent or a determination by the Commission that E&B Giftware, Inc. knowingly violated the CPSA's reporting requirement.
18. In settlement of the staff's allegations, Respondent agrees to pay a civil penalty of one hundred thousand and 00/100 dollars ($100,000.00), in full settlement of this matter, and payable within twenty (20) calendar days of receiving service of the final Settlement Agreement and Order, or by December 31, 2003, whichever occurs later.
19. Upon final acceptance of this Agreement by the Commission and issuance of the Final Order, Respondent knowingly, voluntarily, and completely waives any rights it may have in this matter (1) to an administrative hearing, (2) to judicial review or other challenge or contest of the validity of the Commission's actions, (3) to a determination by the Commission as to whether Respondent failed to comply with CPSA and the underlying regulations, (4) to a statement of findings of fact and conclusions of law and (5) to any claims under the Equal Access to Justice Act.
20. Upon provisional acceptance of this Agreement by the Commission, this Agreement shall be placed on the public record and shall be published in the
21. The Commission may publicize the terms of the Settlement Agreement and Order.
22. The Commissioner's Order in this matter is issued under the provisions of the CPSA, 15 U.S.C. 2051
23. This Settlement Agreement may be used in interpreting the Order. Agreements, understandings, representations, or interpretations apart from those contained in this Settlement Agreement and Order may not be used to vary or contradict its terms.
24. The provisions of this Settlement Agreement and Order shall apply to E&B Giftware, LLC and each of its successors and assigns.
Michelle F. Gillice,
Upon consideration of the Settlement Agreement between Respondent E&B Giftware, LLC and the staff of the Consumer Product Safety Commission, and the Commission having jurisdiction over the subject matter and over E&B Giftware LLC, and it appearing that the Settlement Agreement and Order is in the public interest, it is
By Order of the Commission.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (hereinafter the “Corporation”), 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 requirement on respondents can be properly assessed. This form is available in alternate formats. Individuals who use a telecommunications device for the deaf (TTY/TDD) may call (202) 606-5256 between the hours of 9 a.m. and 4:30 p.m. Eastern time, Monday through Friday.
Currently, the Corporation is soliciting comments concerning the revision of its AmeriCorps Alumni Profile Cards (OMB Control Number 3045-0048 Part A, Part B, and Part C with an expiration date of 03/31/2004). Copies of the information collection request can be obtained by contacting the office listed below in the
Written comments must be submitted to the office listed in the
You may submit comments, identified by the title of the information collection activity, by any of the following methods:
(1) By mail sent to: Corporation for National and Community Service, Attn: Mr. Brian Harvey, AmeriCorps Recruitment, Selection and Placement Office, Room 8705-A, 1201 New York Avenue, NW., Washington, DC., 20525.
(2) By hand delivery or by courier to the Corporation's mailroom, Room 6010, at the mail address given in paragraph (1) above, between 9 a.m. and 4 p.m. Monday through Friday, except Federal holidays.
(3) By fax to: (202) 565-2794, Attn: Mr. Brian Harvey, AmeriCorps Recruitment, Selection and Placement Office.
(4) Electronically through the Corporation's e-mail address system:
Brian Harvey, (202) 606-5000, ext. 492, or e-mail to
The Corporation is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Corporation, 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 the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Corporation proposes to send out AmeriCorps Alumni Profile Cards to former AmeriCorps and VISTA members' home addresses requesting that they complete the card and return it to the AmeriCorps Recruitment Office. The card will be used by Corporation personnel and other organizations (only with the explicit written permission of the respondent). The purpose of the card is to enhance communications between the Corporation and former AmeriCorps members to provide them with information on Corporation activities, and to seek their assistance in volunteer recruitment activities.
The Corporation proposes to revise the AmeriCorps Alumni Profile Card by changing the name to more accurately describe the information collection and to include the members who served in all AmeriCorps programs. In addition, the Corporation will deleting unused
• The exact dates of service from the person filling out the AmeriCorps*VISTA Alumni Locator Card.
• Detailed information about the person's current interests, occupation and expertise.
• Collecting the person's cell phone number for those who prefer to be contacted in that manner.
The Corporation also plans to gather additional information about the former member's current education level. This will help the Corporation to more accurately gear communication to former members who may be interested in furthering their education or who may benefit from a particular new initiative.
The Corporation will continue to seek consent to release contact information, including a former member's name, address (including e-mail), and telephone number to the following groups:
1. Alumni Organizations.
2. Educational organizations that can accept the AmeriCorps education award.
3. Service organizations.
Further, the Corporation proposes to revise the AmeriCorps Alumni Locator Card by asking former members to identify his or her involvement with the Corporation or community.
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.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (hereinafter the “Corporation”) announces the availability of its AmeriCorps application guidelines for the 2003-2004 program year. These guidelines set forth the policies, procedures, and timelines that will govern the allocation of all AmeriCorps resources in fiscal year 2004, in all of the following programs: AmeriCorps*State; AmeriCorps*U.S. Territories; AmeriCorps*Indian Tribes; AmeriCorps*South Dakota; AmeriCorps*Education Awards Program; and AmeriCorps*National (for nonprofit organizations operating a program in two or more states).
These guidelines establish requirements for organizations applying for funds, and provide the criteria that will be used in evaluating applicants. A Notice of Funds Availability will follow once the Corporation's fiscal year 2004 budget is finalized.
In addition, the Corporation will hold technical assistance conference calls for organizations applying directly to the Corporation for funding for AmeriCorps*National, AmeriCorps*U.S. Territories, AmeriCorps*Indian Tribes, AmeriCorps*South Dakota, and Education Awards Program applicants. Please check the AmeriCorps Web site at
You may obtain copies of the 2004 AmeriCorps application guidelines by calling Nancy Talbot at (202) 606-5000 x470 (
Department of the Army, DoD.
Notice
Announcement is made of the Notice of Partnership under a Cooperative Research and Development Agreement (CRADA) to Innovative Biosensors, Inc., Gaithersburg, MD to work on a Development of Biosensor Detection System for West Nile Virus.
Commander, U.S. Army Medical Research and Materiel Command, ATTN: Command Judge Advocate, MCMR-JA, 504 Scott Street, Fort Detrick, Frederick, MD 21702-5012.
Submit comments by February 11, 2004.
All comments should be addressed within 15 days from the date of this notice to Maryam Azarion, Office of Research and Technology Applications, 521 Fraim Street, Fort Detrick, MD 21702-5015 at (301) 619-5034.
Department of the Army, DoD.
Notice.
In accordance with 37 CFR 404.6 and 404.7, announcement is made of the availability for licensing of U.S. Patent No. 6,680,374 entitled “Invaplex from Gram Negative Bacteria, Method of Purification and Method of Use,” filed January 31, 2001. The United States Government, as represented by the Secretary of the Army, has rights in this invention.
Commander, U.S. Army Medical Research and Materiel Command, ATTN: Command Judge Advocate, MCMR-JA, 504 Scott Street, Fort Detrick, Frederick, MD 21702-5012.
For patent issues, Ms. Elizabeth Arwine, Patent Attorney, (301) 619-7808. For licensing issues, Dr. Paul Mele, Office of Research & Technology Assessment, (301) 619-6664, both at telefax (301) 619-5034.
Isolated antibodies to Invaplex; novel compositions comprising immunoglobulins directed to invasin proteins and LPS from gram negative bacteria that selectively bind to Invaplex, and do not bind to the individual components of Invaplex.
Department of the Army, DoD.
Notice.
In accordance with 35 U.S.C. 209(e) and 37 CFR 404.7 (a)(l)i), announcement is made of the intent to grant an exclusive, royalty-bearing, revocable license to U.S Patent No. 6,079,791 filed June 27, 2000 entitled “Retractable Grappling Hook”, to Capewell, Inc. with its principal place of business at 105 Nutmeg Road South, South Windsor, CT 06074.
Mr. Robert Rosenkrans at U.S. Army Soldier Systems Center (SSC), Kansas Street, Natick, MA 01760, Phone; (508) 233-4928 or E-mail
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted, unless within fifteen (15) days from the date of this published Notice, SSC receives written evidence and argument to establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Department of the Navy, DOD.
Notice.
The inventions listed below are assigned to the U.S. Government as represented by the Secretary of the Navy and are available for licensing by the Department of the Navy.
U.S. Patent No. 5,793,787: Type II Quantum Well Laser with Enhanced Optical Matrix, Navy Case No. 77,044//U.S. Patent No. 6,154,299: Modulating Retro-reflector Using Multiple Quantum Well Technology, Navy Case No. 78,582.
Requests for copies of the inventions cited should be directed to the Naval Research Laboratory, Code 1004, 4555 Overlook Avenue, SW, Washington, DC 20375-5320, and must include the Navy Case number.
Jane F. Kuhl, Technology Transfer Office, NRL Code 1004, 4555 Overlook Avenue, SW, Washington, DC 20375-5320, telephone (202) 767-7230. Due to temporary U.S. Postal Service delays, please fax (202) 404-7920, E-Mail:
Department of the Navy, DOD.
Notice.
The Department of the Navy hereby gives notice of its intent to grant to Austin AI, LLC, a revocable, nonassignable, exclusive license to practice in the fields of (1) Environmental Soil Characterization,
Anyone wishing to object to the grant of this license must file written objections along with supporting evidence, if any, not later than February 11, 2004.
Written objections are to be filed with the Naval Research Laboratory, Code 1004, 4555 Overlook
Ms. Jane F. Kuhl,Technology Transfer Office, NRL Code 1004, 4555 Overlook Avenue SW., Washington, DC 20375-5320, telephone (202) 767-7230. Due to U.S. Postal delays, please fax (202) 404-7920, E-Mail:
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 26, 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,
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 Joe Schubart at his 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 26, 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: 400.
Burden Hours: 26,000.
This information collection is being submitted under the Streamlined Clearance Process for Discretionary Grant Information Collections (1890-0001). Therefore, the 30-day public comment period notice will be the only public comment notice published for this information collection.
Requests for copies of the submission for OMB review; comment request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Shelia Carey at her e-mail address
A minority institution is defined in 34 CFR 637.4(b) as an accredited college or university whose enrollment of a single minority group or combination of minority groups exceeds 50 percent of the college's or university's total enrollment.
The Department is not bound by any estimates in this notice. Applicants should periodically check the MSEIP's Web site for further information on this program. The address is:
The regulations in 34 CFR part 86 apply to institutions of higher education only.
The Department is not bound by any estimates in this notice. Applicants should periodically check the MSEIP's Web site for further information on this program. The address is:
1.
(1) Public and private nonprofit institutions of higher education that:
(A) Award baccalaureate degrees; and
(B) Are minority institutions;
(2) Public or private nonprofit institutions of higher education that:
(A) Award associates degrees; and
(B) Are minority institutions that:
(i) Have a curriculum that includes science or engineering subjects; and
(ii) Enter into a partnership with public or private nonprofit institutions of higher education that award baccalaureate degrees in science and engineering;
(b) For special projects described in 34 CFR 637.14(b) and (c), eligible applicants include nonprofit science-oriented organizations, professional scientific societies, institutions of higher education, and consortia of organizations. Section 361(3) and (4) of the HEA describes these types of entities as:
(3) Nonprofit science-oriented organizations, professional scientific societies, and institutions of higher education that award baccalaureate degrees, that:
(A) Provide a needed service to a group of minority institutions; or
(B) Provide in-service training for project directors, scientists, and engineers from minority institutions; or
(4) Consortia of organizations that provide needed services to one or more minority institutions, the membership of which may include:
(A) Institutions of higher education that have a curriculum in science or engineering;
(B) Institutions of higher education that have a graduate or professional program in science or engineering;
(C) Research laboratories of, or under contract with, the Department of Energy;
(D) Private organizations that have science or engineering facilities; or
(E) Quasi-governmental entities that have a significant scientific or engineering mission.
(c) For cooperative projects described in 34 CFR 637.15, eligible entitles include groups of nonprofit accredited colleges and universities whose primary fiscal agent is an eligible minority institution as defined in 34 CFR 637.4(b).
A minority institution is defined in 34 CFR 637.4(b) as an accredited college or university whose enrollment of a single minority group or combination of minority groups exceeds 50 percent of the total enrollment.
2.
1.
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 a copy of the application package in an alternative format (
2.
Institutional and Cooperative Project Application: The narrative portions must not exceed the equivalent of 20 double-spaced pages.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles and headings. You may single space the abstract, footnotes, quotations, references, captions, tables, and forms (including the ED Forms), however, you must still use font size 12.
• Use a font that is size 12.
We will reject your application if—
• You apply these standards and exceed the page limit; or
• You apply other standards and exceed the equivalent of the page limit.
3.
4.
5.
(a)
(b) We reference additional regulations outlining funding restrictions in the
6.
Some of the procedures in these instructions for transmitting applications differ from those in the Education Department General Administrative Regulations (EDGAR) (34 CFR 75.102). Under the Administrative Procedure Act (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed regulations. However, these amendments make procedural changes only and do not establish new substantive policy. Therefore, under 5 U.S.C. 553(b)(A), the Secretary has determined that proposed rulemaking is not required.
We are requiring that applications for grants under the MSEIP—CFDA Number 84.120A be submitted electronically using the Electronic Grant Application System (e-Application) available through the Department's e-GRANTS system. The e-GRANTS system is accessible through its portal page at:
If you are unable to submit an application through the e-GRANTS system, you may submit a written request for a waiver of the electronic submission requirement. In your request, you should explain the reason or reasons that prevent you from using the Internet to submit your application. Address your request to: Ms. Sandra Steed, U.S. Department of Education, 1990 K Street, NW., 6th Floor, Washington, DC 20006-8517. Please submit your request no later than two weeks before the application deadline date.
If, within two weeks of the application deadline date, you are unable to submit an application electronically, you must submit a paper application by the application deadline date in accordance with the transmittal instructions in the application package. The paper application must include a written request for a waiver documenting the reasons that prevented you from using the Internet to submit your application.
The pilot project involves the use of e-Application. If you use e-Application, you will be entering data online while completing your application. You may not e-mail an electronic copy of a grant application to us. The data you enter online will be saved into a database. We shall continue to evaluate the success of e-Application and solicit suggestions for its improvement.
If you participate in e-Application, please note the following:
• When you enter the e-Application system, you will find information about its hours of operation. We strongly recommend that you do not wait until the application deadline date to initiate an e-Application package.
• You will not receive any additional point value because you submit a grant application in electronic format, nor will we penalize you if you submit an application in paper format.
• You must submit all documents electronically including the Application for Federal Assistance under MSEIP (OMB 1840-0109), Budget Information Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• Your e-Application must comply with any page limit requirements described in this notice.
• After you electronically submit your application, you will receive an automatic acknowledgement, which will include a PR/Award number (an identifying number unique to your application).
• Within three working days after submitting your electronic application, fax a signed copy of the Application for Federal Assistance MSEIP, OMB 1840-0109, to the Application Control Center after following these steps:
1. Print the OMB 1840-0109, from e-Application.
2. The institution's Authorizing Representative must sign this form.
3. Place the PR/Award number in the upper right hand corner of the hard copy signature page of the OMB 1840-0109.
4. Fax the signed OMB 1840-0109 to the Application Control Center at (202) 260-1349.
• We may request that you give us original signatures on other forms at a later date.
1. You are a registered user of the e-Application system and you have initiated an e-Application for this competition; and
2. (a) The e-Application system is unavailable for 60 minutes or more between the hours of 8:30 a.m. and 3:30 p.m., Washington, DC time, on the application deadline date; or
(b) The e-Application system is unavailable for any period of time during the last hour of operation (that is, for any period of time between 3:30 p.m. and 4:30 p.m., Washington, DC time) on the application deadline date.
We must acknowledge and confirm these periods of unavailability before granting you an extension. To request this extension or to confirm our acknowledgement of any system unavailability, you may contact either (1) the persons listed elsewhere in this notice under
You may access the electronic grant application for the MSEIP at
Projects funded under MSEIP that include construction activity will be provided a copy of this Executive Order and will be asked to certify that they will adhere to it.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
If you use a telecommunication 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 (
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at (202) 512-1530.
The official version of this document is the document published in the
Section 301(a) of the Energy and Water Development Appropriations Act, 2004, Public Law 108-137, provides that none of the funds appropriated for fiscal year 2004 or any previous fiscal year may be used for a “noncompetitive management and operating contract” unless the Secretary of Energy, within 60 days of enactment of the Act, publishes in the
Paragraph (b)(1) of section 301 identifies the noncompetitive management and operating contracts subject to Secretarial review and decision as the contracts for the management and operation of Ames Laboratory, Argonne National Laboratory, Lawrence Berkeley National Laboratory, Lawrence Livermore National Laboratory, and Los Alamos National Laboratory. For purposes of section 301, paragraph (b)(2) of section 301 provides that the term “competitive procedures” has “the meaning provided in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403) and includes the procedures described in section 303 of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253) other than a procedure that solicits a proposal from only one source.”
Public Law 108-137 was enacted on December 1, 2003. Well before that time, on April 30, 2003, I announced my decision to use competitive procedures to award the Los Alamos National Laboratory management and operating contract when its term expires. In addition, I hereby announce my decision to use competitive procedures described in section 301 to award the Ames Laboratory, Argonne National Laboratory, Lawrence Berkeley National Laboratory, and Lawrence Livermore National Laboratory management and operating contracts. Decisions concerning the precise timing and form that these competitions will take are still under consideration and will be made in accordance with applicable law and regulation.
Department of Energy.
Notice.
As required by the Privacy Act of 1974, 5 U.S.C. 552a, and Office of Management and Budget (OMB) Circular A-130, the Department of Energy (DOE) is publishing a notice of a proposed amendment to an existing system of records. DOE proposes to amend the routine use provision for DOE-13 “Payroll and Leave Records.” The proposed amendment will allow disclosure of information to the Defense Finance and Accounting Service (DFAS) for the purpose of providing payroll services for the DOE.
The proposed amendment to an existing system of records will become effective without further notice, on
Written comments should be directed to the following address: U.S. Department of Energy, Abel Lopez, Director, Freedom of Information Act and Privacy Act Group, ME-74, 1000 Independence Avenue, S.W., Washington, DC 20585.
Abel Lopez, Director, Freedom of Information Act and Privacy Act Group, ME-74, U.S. Department of Energy, 1000 Independence Avenue, S.W., Washington, DC 20585, 202-586-5955; Wendy L. Miller, Director, Capital Accounting Center, ME-14, 1000 Independence Avenue, S.W., Washington, DC 20585-1290, (301) 903-5858; and Isiah Smith, Office of the General Counsel, GC-77, U.S. Department of Energy, 1000 Independence Avenue, S.W., Washington, DC 20585, (202) 586-8618.
DOE proposes to amend the routine use provision for an existing system of records, DOE-13 “Payroll and Leave Records.” The new routine use is necessary because DOE has entered into a cross-servicing agreement with DFAS to provide payroll processing services to DOE. The proposed amendment will allow disclosure of information to DFAS for the purpose of processing DOE's payroll; the issuance of salary payments to employees and distribution of wages; and the distribution of allotments and deductions to financial and other institutions, many of which are through electronic funds transfer.
The proposed routine use is compatible with the purpose for which the information is being collected and maintained.
DOE is submitting the report required by OMB Circular A-130 concurrently with the publication of this notice. The text of this notice contains the information required by the Privacy Act, 5 U.S.C. 552a(e)(4).
Payroll and Leave Records.
Unclassified.
U.S. Department of Energy, Headquarters, 1000 Independence Avenue, SW., Washington, DC 20585
U.S. Department of Energy, National Nuclear Security Administration (NNSA) Service Center Albuquerque, P.O. Box 5400, Albuquerque, NM 87185-5400
U.S. Department of Energy, Atlanta Regional Support Office, 730 Peachtree, NE., Suite 876, Atlanta, GA 30308
U.S. Department of Energy, Bonneville Power Administration, P.O. Box 3621, Portland, OR 97208
U.S. Department of Energy, Boston Regional Support Office, One Congress Street, Room 1101, Boston, MA 021144-2021
U.S. Department of Energy, Carlsbad Field Office, P.O. Box 3090, Carlsbad, NM 88221
U.S. Department of Energy, Chicago Operations Office, 9800 South Cass Avenue, Argonne, IL 60439
U.S. Department of Energy, Golden Field Office, 1617 Cole Boulevard, Golden, CO 80401
U.S. Department of Energy, Idaho Operations Office, 850 Energy Drive, Idaho Falls, ID 83401
U.S. Department of Energy, National Energy Technology Laboratory (Morgantown), P.O. Box 880, Morgantown, WV 26507-0880
U.S. Department of Energy, National Energy Technology Laboratory (Pittsburgh), 626 Cochrans Mill Road, Pittsburgh, PA 15236-0940
U.S. Department of Energy, National Petroleum Technology Office, William Center Tower One, 1 West Third Street, Suite 1400, Tulsa, OK 74103
U.S. Department of Energy, Naval Petroleum and Oil Shale Reserves, 907 N. Poplar, Suite 150, Casper, WY 82601
U.S. Department of Energy, Naval Petroleum Reserves in California, 1601 New Stine Road, Suite 240, Bakersfield, CA 93309
U.S. Department of Energy, NNSA Service Center Nevada, P.O. Box 98518, Las Vegas, NV 89193-8518
U.S. Department of Energy, Oak Ridge Operations Office, P.O. Box 2001, Oak Ridge, TN 37831
U.S. Department of Energy, NNSA Service Center Oakland, 1301 Clay Street, Oakland, CA 94612-5208
U.S. Department of Energy, Office of Scientific & Technical Information, P.O. Box 62, Oak Ridge, TN 37831
U.S. Department of Energy, Ohio Field Office, P.O. Box 3020, Miamisburg, OH 45343
U.S. Department of Energy, Philadelphia Regional Support Office, 1880 John F. Kennedy Boulevard, Suite 501, Philadelphia, PA 19103-7483
U.S. Department of Energy, Pittsburgh Naval Reactors Office, P.O. Box 109, West Mifflin, PA 15122-0109
U.S. Department of Energy, Richland Operations Office, P.O. Box 550, Richland, WA 99352
U.S. Department of Energy, Rocky Flats Field Office, 10808 Highway 93, Unit A, Golden, CO 80403-8200
U.S. Department of Energy, Savannah River Operations Office, P.O. A, Aiken, SC 29801
U.S. Department of Energy, Seattle Regional Support Office, 800 Fifth Avenue, Suite 3950, Seattle, WA 98104
U.S. Department of Energy, Schenectady Naval Reactors Office, P.O. Box 1069, Schenectady, NY 12301
U.S. Department of Energy, Southeastern Power Administration, 1166 Athens Tech Road, Elberton, GA 30635-4578
U.S. Department of Energy, Southwestern Power Administration, Williams Tower One, One West Third Street, Tulsa, OK 74103
U.S. Department of Energy, Strategic Petroleum Reserve Project Office, 900 Commerce Road East, New Orleans, LA 70123
U.S. Department of Energy, Western Area Power Administration, P.O. Box 3402, Golden, CO 80401
U.S. Department of Energy, Office of Repository Development, P.O. Box 364629, North Las Vegas, NV 89036-8629
Department of Energy (DOE), including National Nuclear Security Administration (NNSA) personnel and consultants.
Time and attendance records, earning records, payroll actions, deduction information requests, authorizations for overtime and night differential, and Office of Personnel Management (OPM) retirement records.
42 U.S.C. 7101
The records are maintained and used by the DOE to document historical information on employee wages, deductions, retirement benefits, and leave.
1. A record from this system may be disclosed as a routine use to the Department of Treasury to collect withheld taxes, process payroll payments, and issue savings bonds.
2. A record from this system may be disclosed as a routine use to the Internal Revenue Service to process Federal income tax payments and tax levies.
3. A record from this system may be disclosed as a routine use to state and local governments to process State and local income tax deductions and court ordered child support or alimony payments.
4. A record from this system may be disclosed as a routine use to OPM to establish and maintain retirement records and benefits.
5. A record from this system may be disclosed as a routine use to the Thrift Savings Board to update Section 401K type records and benefits.
6. A record from this system may be disclosed as a routine use to the Social Security Administration to establish Social Security records and benefits.
7. A record from this system may be disclosed as a routine use to the Department of Labor to process workmen's compensation claims.
8. A record from this system may be disclosed as a routine use to the Department of Defense to adjust military retirement.
9. A record from this system may be disclosed as a routine use to financial institutions to credit net deposits, savings allotments, and discretionary allotments.
10. A record from this system may be disclosed as a routine use to employee unions to credit accounts for employees with union dues deductions.
11. A record from this system may be disclosed as a routine use to health insurance carriers to process insurance claims.
12. A record from this system may be disclosed as a routine use to the General Accounting Office to verify accuracy and legality of disbursement.
13. A record from this system may be disclosed as a routine use to the Department of Veterans Affairs to evaluate veteran's benefits to which the individual may be entitled.
14. A record from this system may be disclosed as a routine use to States' departments of employment security to determine entitlement to unemployment compensation or other State benefits.
15. A record from the system may be disclosed as a routine use to the appropriate local, State or Federal agency when records alone or in conjunction with other information, indicates a violation or potential violation of law whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program pursuant thereto.
16. A record from the system may be disclosed as a routine use to a Federal, State, or local agency to obtain information relevant to a Departmental decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant, or other benefit. The Department must deem such disclosure to be compatible with the purpose for which the Department collected the information.
17. A record from the system may be disclosed as a routine use to DOE contractors in performance of their contracts, and their officers and employees who have a need for the record in the performance of their duties. Those provided information under this routine use are subject to the same limitations applicable to DOE officers and employees under the Privacy Act.
18. A record from this system of records may be disclosed as a routine use to a member of Congress submitting a request involving the constituent when the constituent has requested assistance from the member concerning the subject matter of the record. The member of Congress must provide a copy of the constituent's request for assistance.
19. A record from this system may be disclosed as a routine use to the Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services, Federal Parent Locator System (FPLS) and Federal Tax Offset System to locate individuals and identify their income sources to establish paternity, establish and modify orders of support, and for enforcement action.
20. A record from this system may be disclosed as a routine use to the Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services, FPLS and Federal Tax Offset System, for release to the Social Security Administration to verify social security numbers in connection with the operation of the FPLS by the Office of Child Support Enforcement.
21. A record from this system may be disclosed as a routine use to the Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services, FPLS and Federal Tax Offset System, for release to the Department of Treasury to administer the Earned Income Tax Credit Program (Section 32, Internal Revenue Code of 1986) and verify a claim with respect to employment in a tax return.
22. A record from this system may be disclosed as a routine use to the Defense Finance and Accounting Service (DFAS) so that DFAS may perform payroll processing services for DOE. These services may include the issuance of salary payments to employees and distribution of wages; and the distribution of allotments and deductions to financial and other institutions, many of which are through electronic funds transfer.
Records may be stored as paper records and electronic media.
Records may be retrieved by name, social security number, and payroll number.
Paper records are maintained in locked cabinets and desks. Electronic records are controlled through established DOE computer center procedures (personnel screening and physical security), and they are password protected. Access is limited to those whose official duties require access to the records.
Records retention and disposal authorities are contained in the National Archives and Records Administration (NARA) General Records Schedule and DOE record schedules that have been approved by NARA.
Headquarters: Director, Office of Management, Budget and Evaluation/Chief Financial Officer, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585.
In accordance with the DOE regulation implementing the Privacy Act, at Title 10, Code of Federal Regulations, part 1008, a request by an individual to determine if a system of records contains information about him/her should be directed to the Director, Headquarters Freedom of Information
Same as Notification Procedures above. Records are generally kept at locations where the work is performed. In accordance with the DOE Privacy Act regulation, proper identification is required before a request is processed.
Same as Notification Procedures above.
The subject individual, supervisors, timekeepers, official personnel records, and the Internal Revenue Service.
None.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice.
In this notice, the Department of Energy (DOE or Department) is forecasting the representative average unit costs of five residential energy sources for the year 2004 pursuant to the Energy Policy and Conservation Act. The five sources are electricity, natural gas, No. 2 heating oil, propane, and kerosene.
The representative average unit costs of energy contained in this notice will become effective February 26, 2004 and will remain in effect until further notice.
Samuel Johnson, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Forrestal Building, Mail Station EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-0854,
Francine Pinto, Esq., U.S. Department of Energy, Office of General Counsel, Forrestal Building, Mail Station GC-72, 1000 Independence Avenue, SW., Washington, DC 20585-0103, (202) 586-7432,
Thomas DePriest, Esq., U.S. Department of Energy, Office of General Counsel, Forrestal Building, Mail Station GC-72, 1000 Independence Avenue, SW., Washington, DC 20585-0103, (202) 586-2946,
Section 323 of the Energy Policy and Conservation Act (Act) (42 U.S.C. 6291-6309) requires that DOE prescribe test procedures for the determination of the estimated annual operating costs or other measures of energy consumption for certain consumer products specified in the Act. (42 U.S.C. 6293(b)(4)) These test procedures are found in 10 CFR part 430, subpart B.
Section 323(b) of the Act requires that the estimated annual operating costs of a covered product be calculated from measurements of energy use in a representative average use cycle or period of use and from representative average unit costs of the energy needed to operate such product during such cycle. (42 U.S.C. 6293(b)) The section further requires that DOE provide information to manufacturers regarding the representative average unit costs of energy. (42 U.S.C. 6293(b)(4)) This cost information should be used by manufacturers to meet their obligations under section 323 of the Act. Most notably, these costs are used to comply with Federal Trade Commission (FTC) requirements for labeling. Manufacturers are required to use the revised DOE representative average unit costs when the FTC publishes new ranges of comparability for specific covered products, 16 CFR part 305. Interested members of the public can also find information covering the FTC labeling requirements at
The Department last published representative average unit costs of residential energy for use in the Energy Conservation Program for Consumer Products Other Than Automobiles on April 9, 2003 (68 FR 17361). Effective February 26, 2004, the cost figures published on April 9, 2003, will be superseded by the cost figures set forth in this notice.
The Department's Energy Information Administration (EIA) developed the representative average unit after-tax costs set forth in this notice. The representative average unit after-tax costs for electricity, natural gas, No. 2 heating oil, and propane are based on simulations used to produce the September 2003, EIA
The 2004 representative average unit costs of energy under section 323(b)(4) of the Act are set forth in Table 1, and will become effective February 26, 2004. They will remain in effect until further notice.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before February 26, 2004.
Submit your comments, referencing docket ID number OPP-2003-0084, to (1) EPA online using EDOCKET (our preferred method), by e-mail to
Nancy Vogel, Field and External Affairs Division (7506C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-6475; fax number: (703) 305-5884; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. The
EPA has established a public docket for this ICR under Docket ID No. OPP-2003-0084, which is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Any comments related to this ICR should be submitted to EPA and OMB within 30 days of this notice. Please note, 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. Although identified as an item in the official docket, information claimed as CBI, or whose disclosure is otherwise restricted by statute, is not included in the official public docket, and will not be available for public viewing in EDOCKET. For further information about the electronic docket,
The following is a summary of the burden estimates taken from the ICR:
According to the procedures prescribed in 5 CFR 1320.12, EPA has submitted this ICR to OMB for review and approval. Any comments related to the renewal of this ICR should be submitted within 30 days of this notice, as described above.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before February 26, 2004.
Submit your comments, referencing docket ID number OW-2003-0076, to (1) EPA online using EDOCKET (our preferred method), by email to
Jeffrey D. Bigler, Program Manager, National Fish and Wildlife Contamination Program, OST/SHPD, (4305T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 566-0389; fax number: (202) 566-0409; email address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On August 14, 2003, (68
EPA has established a public docket for this ICR under Docket ID No. OW-2003-0076, which is available for public viewing at the Water 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 Water Docket is (202) 566-2426. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Any comments related to this ICR should be submitted to EPA and OMB within 30 days of this notice. 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. Although identified as an item in the official docket, information claimed as CBI, or whose disclosure is otherwise restricted by statute, is not included in the official public docket, and will not be available for public viewing in EDOCKET. For further information about the electronic docket, see EPA's
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 and are identified on the form and/or instrument, if applicable.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before February 26, 2004.
Submit your comments, referencing docket ID number OECA-2003-0020, to (1) EPA online using EDOCKET (our preferred method), by e-mail to
Dan Chadwick, Compliance Assessment and Media Programs Division, Office of Compliance, Mail Code 2223A, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 564-7054; fax number: (202) 564-0050; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 19, 2003 (68 FR 27059), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments.
EPA has established a public docket for this ICR under Docket ID Number OECA-2003-0020, which is available for public viewing at the Enforcement and Compliance Docket and Information Center in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Avenue, 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 Enforcement and Compliance Docket and Information Center is (202) 566-1514. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Any comments related to this ICR should be submitted to EPA and OMB within 30 days of this notice. 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. Although identified as an item in the official docket, information claimed as CBI, or whose disclosure is otherwise restricted by statute, is not included in the official public docket, and will not be available for public viewing in EDOCKET. For further information
This ICR contains record keeping and reporting requirements that are mandatory for compliance with 40 CFR part 63, subpart R. Effective enforcement of this rule is necessary due to the hazardous nature of benzene (a known human carcinogen) and the toxic nature of the other 10 Hazardous Air Pollutants emitted from gasoline distribution facilities. In order to ensure compliance with the standards, adequate reporting and record keeping is necessary. This information enables the Agency to: (1) Identify the sources subject to the standard; (2) Ensure that leakage emissions from cargo tanks and process piping equipment components (both liquid and vapor) during loading are being minimized; (3) Ensure that emission control devices are being properly operated and maintained; and (4) Ensure that emissions from storage vessels are minimized and seal and fitting defects are repaired on a timely basis.
Responses to this information collection are deemed to be mandatory, per section 114(a) of the Clean Air Act. The required information consists of emissions data and other information that have been determined not to be private. However, any information submitted to the Agency for which a claim of confidentiality is made will be safeguarded according to the Agency policies set forth in Title 40, chapter 1, part 2, subpart B—Confidentiality of Business Information (see 40 CFR part 2; 41 FR 36902, September 1, 1976; amended by 43 FR 40000, September 8, 1978; 43 FR 42251, September 20, 1978; 44 FR 17674, March 23, 1979).
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 in 40 CFR are listed in 40 CFR part 9 and are identified on the form and/or instrument, if applicable.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act, this document announces that an Information Collection Request (ICR) has been forwarded to the Office of Management and Budget (OMB) for review and approval. This is a request to renew an existing approved collection. This ICR is scheduled to expire on January 31, 2004. Under OMB regulations, the Agency may continue to conduct or sponsor the collection of information while this submission is pending at OMB. This ICR describes the nature of the information collection and its estimated burden and cost.
Additional comments may be submitted on or before February 26, 2004.
Submit your comments, referencing docket ID number OECA-2003-0030, to (1) EPA online using EDOCKET (our preferred method), by e-mail to
Learia Williams, Compliance Assessment and Media Programs division, Mail Code 2223A, Office of Compliance, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 564-4113; fax number: (202) 564-0050; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 19, 2003 (68 FR 27059), EPA sought comments on this ICR pursuant
EPA has established a public docket for this ICR under Docket ID Number OECA-2003-0030, which is available for public viewing at the Enforcement and Compliance Docket and Information Center in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Avenue, 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 Enforcement and Compliance Docket and Information Center Docket is: (202) 566-1514. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Any comments related to this ICR should be submitted to EPA and OMB within 30 days of this notice. 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, Confidential Business Information (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. Although identified as an item in the official docket, information claimed as CBI, or whose disclosure is otherwise restricted by statute, is not included in the official public docket, and will not be available for public viewing in EDOCKET. For further information about the electronic docket, see EPA's
Owners or operators of the affected facilities described must make the following one-time only reports: notification of the date of construction or reconstruction; notification of the actual dates of startup, notification of any physical or operational change to an existing facility which may increase the regulated pollutant emission rate; notification of the date of the initial performance test; and the results of the initial performance test.
Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, records and semiannual reports are required of all sources subject to NSPS.
In the Administrator's judgement, volatile organic compound (VOC) emissions from the nitric acid plants cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. Therefore, NSPS were promulgated for this source category.
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 and 48 CFR chapter 15, and are identified on the form and/or instrument, if applicable.
Changes in the Estimates: There is a decrease of 506 hours in the total estimated burden currently identified in the OMB Inventory of Approved ICR Burdens. This is due to a decrease in the number of sources.
Environmental Protection Agency (EPA).
Notice.
This document announces the Office of Management and Budget's (OMB) responses to Agency clearance requests, in compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Susan Auby (202) 566-1672, or email at
EPA ICR No. 1353.07; Land Disposal Restrictions No-Migration Variances; in 40 CFR 268.6, 40 CFR 268.40; was approved 12/16/2003; OMB Number 2050-0062; expires 12/31/2006.
EPA ICR No. 1981.02; Distribution of Off-site Consequence Analysis Information under Section 112(r) (7) (H) of the Clean Air Act (CAA); in 40 CFR part 1400; was approved 12/15/2003; OMB Number 2050-0172; expires 12/31/2006.
EPA ICR No. 2046.02; NESHAP for Mercury Cell Chlor-Alkali Plants (Final Rule); in 40 CFR part 63, subpart IIIII; was approved 01/08/04; OMB Number 2060-0542; expires 01/31/2007.
EPA ICR No. 2096.02; NESHAP for Iron and Steel Foundries (Final Rule); 40 CFR part 63, subpart EEEEE; was approved 01/08/04; OMB Number 2060-0543; expires 01/31/2007.
EPA ICR No. 1739.04; NESHAP for the Printing and Publishing Industry; in 40 CFR part 63, subpart KK; was approved 01/08/2004; OMB Number 2060-0335; expires 01/31/2007.
EPA ICR No. 2050.02; NESHAP for Taconite Iron Ore Processing (Final Rule); in 40 CFR part 63, subpart RRRRR; was approved 01/06/04; OMB Number 2060-0538; expires 01/31/2007.
EPA ICR No. 0278.08; Notice of Supplemental Distribution of a Registered Pesticide Product; in 40 CFR 152.132; was approved 01/05/2004; OMB Number 2070-0044; expires 01/31/2007.
EPA ICR No. 2062.02; NESHAP: Site Remediation (Final Rule); in 40 CFR part 63, subpart GGGGG; was approved 12/24/2003; OMB Number 2060-0534; expires 12/31/2006.
EPA ICR No. 2098.02; NESHAP for Primary Magnesium Refining (Final Rule); in 40 CFR part 63, subpart TTTTT; was approved 01/05/2004; OMB Number 2060-0536; expires 01/31/2007.
EPA ICR No. 2044.02; NESHAP for Plastic Parts and Products Surface Coating (Final Rule); in 40 CFR part 63, subpart PPPP; was approved 01/06/2004; OMB Number 2060-0537; expires 01/31/2007.
EPA ICR No. 1686.05; NESHAP for the Secondary Lead Smelter Industry; in 40 CFR part 63, subpart X; was approved 12/29/2003; OMB Number 2060-0296; expires 12/31/2006.
EPA ICR No. 2072.02; NESHAP for Lime Manufacturing (Final Rule); in 40 CFR part 63, subpart WWWW; was approved 01/06/04; OMB Number 2060-0544; expires 01/31/2007.
EPA ICR No. 1572.05; Hazardous Waste Specific Unit Requirements and Special Waste processes and Types; on 12/22/2003 OMB extended the expiration date to 03/31/2004.
EPA ICR No. 1656.10; Risk Management Program Requirements and Petitions to Modify the List of Regulated Substances under Section 122(r) of the Clean Air Act (Proposed Rule); on 12/15/2003 OMB filed a comment.
EPA ICR No. 2047.01; Participation by Disadvantaged Business Enterprises in Procurement under Environmental Protection Agency (EPA) Financial Assistance Agreements in 40 CFR part 68; on 01/05/2004 OMB filed a comment.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before February 26, 2004.
Submit your comments, referencing docket ID number OAR-2003-0171, to (1) EPA online using EDOCKET (our preferred method), by email to
Marilyn Bennett, Office of Transportation and Air Quality, Mail Code 6406J, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 343-9624; fax number: (202) 343-2802; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On October 20, 2003, (68 FR 59934), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments.
EPA has established a public docket for this ICR under Docket ID No. OAR-2003-0171, which is available for public viewing at the Air and Radiation Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Avenue, 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 Air and Radiation Docket is (202) 566-1742. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Any comments related to this ICR should be submitted to EPA and OMB within 30 days of this notice. 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. Although identified as an item in the
The scope of the recordkeeping and reporting requirements for each type of party (
The information under this ICR will be collected by EPA's Transportation and Regional Programs Division, Office of Transportation and Air Quality, Office of Air and Radiation (OAR), and by EPA's Air Enforcement Division, Office of Regulatory Enforcement, Office of Enforcement and Compliance Assurance (OECA). The information collected will be used by EPA to evaluate compliance with the gasoline sulfur control requirements under the Tier 2 rule. This oversight by EPA is necessary to ensure attainment of the air quality goals of the Tier 2 program. Proprietary information will be submitted by refiners and importers for demonstrating compliance with the sulfur standards, and for establishing baseline sulfur levels under the credit trading and hardship programs associated with the rule. Confidentiality is handled in accordance with the Freedom of Information Act and EPA regulations at 40 CFR part 2.
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 in 40 CFR are listed in 40 CFR part 9 and are identified on the form and/or instrument, if applicable.
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.
In compliance with the Paperwork Reduction Act, this document announces that an Information Collection Request (ICR) has been forwarded to the Office of Management and Budget (OMB) for review and approval. This is a request to renew an existing approved collection. This ICR is scheduled to expire on January 31, 2004. Under OMB regulations, the Agency may continue to conduct or sponsor the collection of information while this submission is pending at OMB. This ICR describes the nature of the information collection and its estimated burden and cost.
Additional comments may be submitted on or before February 26, 2004.
Submit your comments, referencing docket ID number OECA-2003-0037, to (1) EPA online using EDOCKET (our preferred method), by e-mail to
Mari
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 19, 2003 (68 FR 27059), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments.
EPA has established a public docket for this ICR under Docket ID Number OECA-2003-0037, which is available for public viewing at the Enforcement and Compliance Docket and Information Center in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Avenue, 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 Enforcement and Compliance Docket and Information Center is (202) 566-1514. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Any comments related to this ICR should be submitted to EPA and OMB within 30 days of this notice. 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. Although identified as an item in the official docket, information claimed as CBI, or whose disclosure is otherwise restricted by statute, is not included in the official public docket, and will not be available for public viewing in EDOCKET. For further information about the electronic docket,
In general, all MACT standards require initial notifications, performance tests, and periodic reports. Owners or operators of flexible polyurethane foam production facilities to which this rule is applicable must choose one of the compliance options described in the standard or reduce HAP emissions to below the compliance level. Specifically, the rule requirements for slabstock foam producers include an initial notification, notification of compliance status, semiannual reports and annual compliance certifications. In addition, respondents are required to submit a pre-compliance report that describes the HAP compliance procedures, and recordkeeping procedures. Those electing to comply with the slabstock foam emission limitation using recovery devices must measure and record emissions as specified in § 63.1297 of the rule. The rule requirements for molded and rebond foam producers include a notification of a compliance status report and an annual compliance certification. These notifications, reports, and records are essential in determining compliance, and are required of all sources subject to MACT.
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 and 48 CFR chapter 15, and are identified on the form and/or instrument, if applicable.
Changes in the Estimates: There is an increase of 2,647 hours in the total
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before February 26, 2004.
Submit your comments, referencing docket ID number OPP-2003-0085, to (1) EPA online using EDOCKET (our preferred method), by e-mail to
Nancy Vogel, Field and External Affairs Division (7506C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 305-6475; fax number: (703) 305-5884; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. The
EPA has established a public docket for this ICR under Docket ID No. OPP-2003-0085, which is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Any comments related to this ICR should be submitted to EPA and OMB within 30 days of this notice. Please note, 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. Although identified as an item in the official docket, information claimed as CBI, or whose disclosure is otherwise restricted by statute, is not included in the official public docket, and will not be available for public viewing in EDOCKET. For further information about the electronic docket,
Every year, the Agency provides registrants a list of the registered products currently registered with the Agency. Registrants are provided the opportunity to review the list, determine its accuracy, and remit payment of the maintenance fee. The list of products has space identified for marking those products to be supported and those products that are to be canceled. The registrants are also instructed to identify any products on the list which they believe to be transferred to another company, and to add to the list any products which the company believes to be registered that are not on the Agency-provided list. The failure to pay the required fee for a product will result in cancellation of that product.
The following is a summary of the burden estimates taken from the ICR:
•
•
•
•
•
•
According to the procedures prescribed in 5 CFR 1320.12, EPA has submitted this ICR to OMB for review and approval. Any comments related to the renewal of this ICR should be submitted within 30 days of this notice, as described above.
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601
The Frontier Hard Chrome Site is located at 113 Y Street in Vancouver, Washington. The Site is the location of the former Frontier Hard Chrome chrome-plating facility. Discharges of chrome-plating waste at the Site have resulted in a plume of chromium-contaminated groundwater. The Site was listed on the National Priorities List and is being remediated by EPA using Superfund money pursuant to an Amended Record of Decision issued on August 30, 2001.
The Property on which the chrome-plating facility was located is owned by Walter Neth, the Estate of Otto Neth, and the Lillian Mae Neth Family Trust (Settling PRPs). The Settling PRPs are seeking to sell the Property to Kelly Development LLC (Kelly). Kelly intends to purchase the Property, as well as the adjacent property, for development for light industrial uses, offices, and storage space.
The proposed Prospective Purchaser Agreement would resolve certain potential claims of the United States under sections 106 and 107(a) of CERCLA, 42 U.S.C. 9606 and 9607(a), and section 7003 of RCRA, 42 U.S.C. 6973 against Kelly Development LLC that may otherwise result from Kelly acquiring Site property. It would also grant a waiver of any lien that EPA may have on the Property under section 107(r) of CERCLA, 42 U.S.C. 9607(r), as a result of response actions conducted by EPA on the Property. The proposed Settlement Agreement would resolve claims of the United States under sections 106 and 107(a) of CERCLA, 42 U.S.C. 9606 and 9607(a) against the Settling PRPs.
In exchange for its covenant not to sue in both agreements, EPA is receiving $180,000 less 87.5% of Settling PRPs' closing costs to be paid to a Superfund Special Account for use at the Site. Settling PRPs are also creating a Frontier Hard Chrome Environmental Trust (Trust), into which $30,000 will be paid. The total of $210,000 is 87.5% of the amount Kelly is paying to purchase the Site Property from the Settling PRPs. Settling PRPs are also funding the Trust with insurance policies covering the Site. The Trustee will pursue these policies and whatever proceeds are received will be transferred to the Superfund Special Account for the Site.
EPA is allowing thirty (30) days for public comments. For thirty calendar days following the date of publication of this notice, EPA will receive written comments relating to the proposed Prospective Purchaser Agreement and Settlement Agreement. EPA's response to any comments received will be available for public inspection at the U.S. Environmental Protection Agency, Region 10, 1200 Sixth Ave., Seattle, WA 98101.
Comments must be submitted on or before February 26, 2004.
The proposed Prospective Purchaser Agreement, Settlement Agreement, and additional background documents relating to the settlements are available for public inspection at the Environmental Protection Agency, Region 10, 1200 Sixth Ave., Seattle, WA 98101. A copy of the proposed settlements may be obtained from Jennifer Byrne, Assistant Regional Counsel (ORC-158), Office of Regional Counsel, EPA Region 10, Seattle, WA 98101. Comments should reference “Frontier Hard Chrome Settlements” and “Docket No. CERCLA-10-2003-0009” and should be addressed to Jennifer Byrne at the above address.
Jennifer Byrne, Assistant Regional Counsel (ORC-158), Office of Regional Counsel, EPA Region 10, Seattle, WA 98101; phone: (206) 553-0050; fax: (206) 553-0163; e-mail:
Environmental Protection Agency (EPA).
Notice of Tentative Approval and Solicitation of Request for a Public Hearing for Public Water System Supervision Program Revision for the State of New Jersey.
Notice is hereby given that the United States Environmental Protection Agency (EPA) has
The application demonstrates that New Jersey has adopted drinking water regulations which satisfy the NPDWRs for the above. The USEPA has determined that New Jersey's regulations are no less stringent than the corresponding Federal Regulations and that New Jersey continues to meet all requirements for primary enforcement responsibility as specified in 40 CFR 142.10.
This determination to approve New Jersey's primacy program revision application is made pursuant to 40 CFR 142.12(d)(3). It shall become final and effective February 26, 2004 unless (1) a timely and appropriate request for a public hearing is received or (2) the Regional Administrator elects to hold a public hearing on her own motion. Any interested person, other than Federal Agencies, may request a public hearing. A request for a public hearing must be submitted to the Regional Administrator at the address shown below by February 26, 2004. If a substantial request for a public hearing is made within the requested thirty day time frame, a public hearing will be held and a notice will be given in the
Any request for a public hearing shall include the following information: (1) Name, address and telephone number of the individual, organization or other entity requesting a hearing; (2) a brief statement of the requesting person's interest in the Regional Administrator's determination and a brief statement on information that the requesting person intends to submit at such hearing; (3) the signature of the individual making the request or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity.
Requests for Public Hearing shall be addressed to:
Regional Administrator, U.S. Environmental Protection Agency—Region 2, 290 Broadway, New York, New York 10007-1866.
All documents relating to this determination are available for inspection between the hours of 9 a.m. and 4:30 p.m., Monday through Friday, at the following offices: Bureau of Safe Drinking Water, Division of Water Resources, New Jersey Department of Environmental Protection, 401 East State Street, Floor 3, Trenton, New Jersey 08625-0426. U.S. Environmental Protection Agency—Region 2, 24th Floor Drinking Water Section, 290 Broadway, New York, New York 10007-1866.
Michael J. Lowy, Drinking Water Section, U.S. Environmental Protection Agency—Region 2, (212) 637-3830.
(Section 1413 of the Safe Drinking Water Act, as amended, 40 U.S.C. 300g-2, and 40 CFR 142.10, 142.12(d) and 142.13).
Federal Accounting Standards Advisory Board
Notice.
Notice of Statement of Federal Financial Accounting and Auditing Technical Release 3 (revised),
Copies of the Statements can be obtained by contacting FASAB at (202) 512-7350 or
Wendy Comes, Executive Director, 441 G St., NW., Mail Stop 6K17V, Washington, DC 20548, or call (202) 512-7350.
Federal Advisory Committee Act. Pub. L. No. 92-463.
Federal Communications Commission.
Notice of meeting.
The Federal Communications Commission will hold a Localism Task Force hearing in San Antonio, Texas, on January 28, 2004, on localism in the broadcast industry. The purpose of the hearing is to gather information from a variety of sources, including consumers, industry, and civic organizations on broadcasters' service to their local communities.
The hearing will be held on Wednesday, January 28, 2004, from 5:30 p.m. to 9:30 p.m.
The hearing will be held at the City Council Chamber in the Municipal Plaza Building, located at 103 Main Plaza, San Antonio, Texas 78205.
Elizabeth Valinoti, 202-418-2330.
The Federal Communications Commission (FCC) will hold a Localism Task Force hearing on the subject of localism, to be held on January 28, 2004, in San Antonio, Texas. Several FCC Commissioners will preside. The hearing is open to the public, and seating will be available on a first-come, first-served basis. The purpose of the hearing is to gather information from consumers, industry, civic organizations, and others on broadcasters' service to their local communities. The San Antonio hearing will begin with a number of invited guests making brief introductory remarks and will be followed by presentations from a variety of panelists. The Commissioners will then have an opportunity to ask the panelists questions or comment on the subject of localism. Finally, the general public will be afforded time to register their views through an “open microphone” format.
2. Open captioning will be provided for this event. Other reasonable accommodations for people with disabilities are available upon request. Please include a description of the accommodation needed, providing as much detail as you can, as well as contact information in case additional information is needed. Please make your request as early as possible. Last minute requests will be accepted, but may be impossible to fulfill. Please send a request by e-mail to
3. The hearing will be recorded, and the record will be available to the public. The public may also file comments or other documents with the Commission. Filing instructions are provided at
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center Web site at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than February 20, 2004.
Board of Governors of the Federal Reserve System, January 21, 2004.
Federal Trade Commission.
Notice.
The Federal Trade Commission announces the revised thresholds for interlocking directorates required by the 1990 amendment of section 8 of the Clayton Act. Section 8 prohibits, with certain exceptions, one person from serving as a director or officer of two competing corporations if two thresholds are met. Competitor corporations are covered by Section 8 if each one has capital, surplus, and undivided profits aggregating more than $10,000,000, with the exception that no corporation is covered if the competitive sales of either corporation are less than $1,000,000. Section 8(a)(5) requires the Federal Trade Commission to revise those thresholds annually, based on the change in gross national product. The new thresholds, which take effect immediately, are $20,090,000 for section 8(a)(1), and $2,009,000 for section 8 (a)(2)(A).
January 27, 2004.
James F. Mongoven, Bureau of Competition, Office of Policy and Evaluation, (202) 326-2879.
15 U.S.C. 19(a)(5).
By direction of the Commission.
The Advisory Council on Government Auditing Standards will meet Monday, February 9, 2004, from 8:30 a.m. to 5 p.m., in room 7C13 of the General Accounting Office building, 441 G Street, NW., Washington, DC.
The Advisory Council on Government Auditing Standards will hold a meeting to discuss issues that may impact government auditing standards. The meeting is open to the public. Council discussions and reviews are open to the public. Members of the public will be provided an opportunity to address the Council with a brief (five minute) presentation on Monday afternoon.
Any interested person who plans to attend the meeting as an observer must contact Sharon Chase, Council Assistant, (202) 512-6428. A form of picture identification must be presented to the GAO Security Desk on the day of the meeting to obtain access to the GAO Building. For further information, please contact Ms. Chase. Please check the Government Auditing Standards Web page
Office of Governmentwide Policy, General Services Administration (GSA).
Notice of Per Diem Bulletin 04-2, temporarily revised continental United States (CONUS) per diem rates.
As a result of the G-8 Summit, lodging and meal rates have increased in Sea Island, St. Simons Island and Jekyll Island (Glynn County) and Savannah (Chatham County), Georgia. A special per diem rate has been established that will apply to claims for reimbursement covering travel during the period February 1, 2004, through August 1, 2004, for U.S. Government employees and members of the uniformed services attending and/or participating in the G-8 Summit. The special per diem rate prescribed in bulletin 04-2 may be found at
This notice is effective from February 1, 2004, to August 15, 2004, and applies to travel during the period of February 1 through August 1, 2004.
For clarification of content, contact Patrick McConnell, Office of Governmentwide Police, Travel Management Policy, at (202) 501-2362. Please cite Notice of Per Diem Bulletin 04-2.
Title 5 United States Code, section 5702 permits the Administrator of General Services to establish per diem rates for official travel within the continental United States. The head of an agency may request the establishment of a higher rate when special or unusual circumstances result in an extreme increase in subsistence costs for a temporary period. This higher rate temporarily changes the maximum per diem amounts announced in the
Sea Island, St. Simons Island and Jekyll Island, including Glynn County. Savannah, including Chatham County.
Office of the Secretary (OS), Department of Health and Human Services (HHS).
Notice.
Concern that terrorists may have access to the smallpox virus and attempt to use it against the American public and United States Government facilities abroad continues to exist. The January 24, 2003, declaration regarding administration of smallpox countermeasures is revised to incorporate statutory definitions from the Smallpox Emergency Personnel Protection Act of 2003 and extended for one year until and including January 23, 2005.
This notice and the attached amendment are effective as of January 24, 2004.
William F. Raub, PhD, Acting Assistant Secretary for the Office of Public Health Emergency Preparedness, Office of the Secretary, Department of Health and Human Services, 200 Independence Avenue, SW., Washington, DC 20201, Telephone (202) 690-5760 (this is not a toll-free number).
Section 224(p) of the Public Health Service Act, which was established by section 304 of the Homeland Security Act of 2002 and amended by section 3 of the Smallpox Emergency Personnel Protection Act of 2003 (“SEPPA”), is intended to alleviate certain liability concerns associated with administration of smallpox countermeasures and, therefore, ensure that the countermeasures are available and can be administered in the event of a smallpox-related actual or potential
On January 24, 2003, due to concerns that terrorists may have access to the smallpox virus and attempt to use it against the American public and U.S. Government facilities abroad, the Secretary issued a declaration making section 224's legal protections available. The declaration was effective until and including January 23, 2004; it included in section VI a number of definitions, which are no longer appropriate because of the statutory amendments in section 3 of SEPPA. The Secretary issues the amendment below to: (1) Delete the section VI definitions, and (2) extend the January 24, 2003, declaration pursuant to section 224(p)(2)(A) of the Public Health Service Act. In deleting the definitions, the Secretary does not intend to adopt an interpretation of the statutory amendments as limiting or denying the remedy of section 224(a) in any situation where it would have been available under the statute as originally enacted and the January 24, 2003, declaration.
I.
II.
III.
IV.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by March 29, 2004.
Submit electronic comments on the collection of information to
Karen L. Nelson, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1482.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
FDA implements the provisions of the Federal Food, Drug, and Cosmetic Act (the act) designed to assure the adequate labeling of prescription (Rx) drugs. Under section 502(a) of the act (21 U.S.C. 352(a)), a drug product is misbranded if its labeling is false or misleading in any particular, and under section 201(n) of the act (21 U.S.C. 321(n)), a drug's labeling is misleading if its labeling or advertising fails to reveal material facts. FDA also has the authority to collect this information under Title VI of Public Law 104-180 (Related Agencies and Food and Drug Administration) section 601 (Effective Medication Guides), which directs the development of “a mechanism to assess periodically * * * the frequency with which the [oral and written prescription] information is provided to consumers.”
To assure that Rx drugs are not misbranded, FDA has historically asserted that adequate labeling requires certain information be provided to patients. In 1982, when FDA revoked a planned initiative to require mandatory patient package inserts for all Rx drugs
Surveys of consumers about their receipt of Rx drug information were carried out in 1992, 1994, 1996, 1998, and 2001. This notice is in regard to conducting the survey in 2004.
The survey is conducted by telephone on a national random sample of adults who received a new prescription for themselves or a household member within the past 4 weeks. The interview assesses the extent to which information was received from the doctor, the pharmacist, and other sources. Survey respondents are also asked attitudinal questions, and demographic and other background characteristics are obtained. The survey enables FDA to determine the frequency with which such information is provided to consumers. Without this information, the agency would be unable to assess the degree to which adequate oral patient information about Rx drugs is provided.
Respondents to this collection of information are adults (18 years or older) in the continental United States who have obtained a new (nonrefill) prescription at a pharmacy for themselves or a member of their household in the last 4 weeks.
FDA estimates the burden of this collection of information as follows:
This total estimate of 626 total annual burden hours is based on the 2001 survey administration, in which 15,319 potential respondents were contacted to obtain 1,000 interviews.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by March 29, 2004.
Submit electronic comments on the collection of information to
Peggy Robbins, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
FDA is requesting approval from OMB for clearance to continue to conduct a pilot project to evaluate aspects of a national reporting system mandated by the Food and Drug Modernization Act (FDAMA) of 1997. Under section 519(b) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360(i)(b)), FDA is authorized to require manufacturers to report medical device related deaths, serious injuries, and malfunctions; user facilities (hospitals, nursing homes, ambulatory surgical facilities and outpatient diagnostic and treatment facilities) to report device-related deaths directly to FDA and to manufacturers, and to report serious injuries to the manufacturer. Section 213 of FDAMA amended section 519(b) of the Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360i(b)). This amendment legislated the replacement of a universal user facility reporting by a system that is limited to a “* * * subject of user facilities that constitutes a representative profile of user reports” for device related deaths and serious injuries. This amendment is reflected in section 519(b)(5)(A) of the act.
FDA is the regulatory agency responsible for the safety and effectiveness of medical products including medical devices and radiological products. Important questions about medical devices, such as those concerning user experience, durability, and rare effects may not be answered until after the device has been marketed. To protect the public health, FDA must be able to rapidly collect information pertaining to adverse events associated with medical devices after they have been marketed. This system is called the Medical Product Surveillance Network (MedSun). The current universal reporting system remains in place during the pilot stages of the new program, and until FDA implements the new national system by regulation. This legislation provides FDA with the opportunity to design and implement a national surveillance network, composed of well-trained clinical facilities, to provide high quality data on medical devices in clinical use.
Before writing a regulation to implement the large-scale national MedSun reporting system, FDA has been conducting a pilot project to ensure all aspects of the new system address the needs of both the reporting facilities and FDA. This pilot project began with a small sample (approximately 25) and was planned to increase to a larger sample of approximately 250 facilities over a period of approximately 3 years. Data collection began in February 2002 and has been increasing since that time. FDA has achieved its recruitment goals each year, reaching 180 sites at the end of fiscal year (FY) 2003. FDA will reach a total of 240 for FY 2004 and will reach the final goal of 250 by FY 2005. The program has proven to be very popular with sites as FDA has gained a national reputation, with hospitals waiting in line to join. However, FDA's current resources will not permit FDA to expand beyond 250 sites at this time.
The pilot originally had 3 parts to the data collection: (1) Collecting demographic profile information about the participation facilities, (2) implementing an electronic version of the portions of the MedWatch form (FDA Form No. 3500A, OMB control number 0910-0291) used to report adverse events occurring with medical devices, and (3) adding additional voluntary questions to the data collection. To date, these 3 features remain unchanged. However, there has been an addition to the data collection that was approved by OMB in the spring of 2004. Therefore, the fourth part of the collection system is the Medical Device Engineering Network (M-DEN)—a place on the MedSun software for the reporters to share information with each other.
FDA estimates the burden of this collection of information as follows:
Currently, FDA has 180 sites participating in MedSun pilot program, but expects to have 250 sites over the next 2 years. The frequency of response reflects what FDA has actually been receiving as the average number of submissions in the MedSun Program. While 6 is the actual average for submissions, FDA hopes to increase this number to 8 once their educational materials reach potential respondents. The time estimated to respond is based on feedback FDA has received from current MedSun reporters.
At this time, FDA estimates that 1/3 of the total number of respondents will access M-DEN aspect of the MedSun software, or approximately 83 persons per year. Each respondent is expected to post 5 problems and respond to 5 problems posted by other MedSun participants for a total of 10 responses per year. It is expected that each visit to the bulletin will not take longer than 30 minutes.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Information Program on Clinical Trials for Serious or Life-Threatening Diseases and Conditions.” FDA is revising its March 2002 guidance
Submit written or electronic comments on the draft guidance by March 29, 2004. General comments on agency guidance documents are welcome at any time.
Submit written requests for single copies of the draft guidance to the Division of Drug Information (HFD-240), Center for Drug Evaluation and Research, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857 or to the Office of Communication, Training, and Manufacturers Assistance (HFM-40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, Rockville, MD 20852-1448. The draft guidance may also be obtained by mail by calling the CBER Voice Information System at 1-800-835-4709 or 301-827-1800. Send one self-addressed adhesive label to assist that office in processing your requests. Submit written comments on the 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
Theresa Toigo, Office of Special Health Issues (HF-12), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4460.
FDA is announcing the availability of a draft guidance for industry entitled “Information Program on Clinical Trials for Serious or Life-Threatening Diseases and Conditions” to assist sponsors who will be submitting information to the Clinical Trials Data Bank established by section 113 of the Modernization Act (42 U.S.C. 282). This draft guidance revises the guidance of the same title issued in March 2002 (67 FR 12022, March 18, 2002) to include assistance on submitting information required by the BPCA (Public Law 107-109). This draft guidance updates the March 2002 guidance.
The BPCA amends section 402(j)(3)(A) of the PHS Act (42 U.S.C. 282(j)(3)(A)) to require that additional information be included in the Clinical Trials Data Bank established as required under section 113 of the Modernization Act. Additional information to be submitted includes a description of whether, and through what procedure, the manufacturer or sponsor of an investigation of a new drug will respond to requests for a protocol exception, with appropriate safeguards, for single-patient and expanded access use of the investigational drug, particularly in children.
Section 113 of the Modernization Act, enacted November 21, 1997, directs the Secretary of Health and Human Services (the Secretary), acting through the Director of the National Institutes of Health (NIH), to establish, maintain, and operate a data bank of information on clinical trials for drugs to treat serious or life-threatening diseases and conditions. The Clinical Trials Data Bank is intended to be a central resource, providing current information on clinical trials to individuals with serious or life-threatening diseases or conditions, to other members of the public, and to health care providers and researchers.
Specifically, section 113 of the Modernization Act requires that the Clinical Trials Data Bank contain the following information: (1) Information about Federally and privately funded clinical trials for experimental treatments (drug and biological products) for patients with serious or life-threatening diseases or conditions, (2) a description of the purpose of each experimental drug, (3) patient eligibility criteria, (4) a description of the location of clinical trial sites, and (5) a point of contact for patients wanting to enroll in the trial. Section 113 of the Modernization Act also requires that information provided through the Clinical Trials Data Bank be in a form that can be readily understood by the public (42 U.S.C. 282(j)(3)(A)). The BPCA, signed by the President on January 4, 2002, requires that the Clinical Trials Data Bank contain additional information including a description of whether, and through what procedure, the manufacturer or sponsor of an IND will respond to requests for protocol exception, with appropriate safeguards, for single-patient and expanded access use of the investigational drug, particularly in children.
The NIH, through its National Library of Medicine (NLM) and with input from FDA and others, developed the Clinical Trials Data Bank. The first version of the Clinical Trials Data Bank was made available to the public on February 29, 2000, on the Internet at
Shortly thereafter, FDA made available two draft guidances. The first draft guidance provided recommendations for industry on the submission of protocol information to the Clinical Trials Data Bank. It included information about the types of clinical trials for which submissions are required under section 113 of the Modernization Act as well as information about the content of those submissions. The second draft guidance addressed procedural issues, including how to submit required and voluntary protocol information to the Clinical Trials Data Bank. It also discussed issues related to submitting certification to the Secretary that disclosure of information for a particular protocol would substantially interfere with the timely enrollment of subjects in the clinical investigation. The second draft guidance also proposed a timeframe for submitting the information. The March 2002 guidance combined the two draft guidances into a single guidance (available at
This draft guidance updates the March 2002 guidance to include information on how to comply with new statutory requirements contained in the BPCA, for submitting details about single-patient use and expanded access use contained in the BPCA. This draft guidance also includes several minor updates to the information in it and to the format. Additional updates on procedural issues not related to the BPCA will be discussed in future revisions to the guidance.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the agency's current thinking on the information program on clinical trials for serious or life-threatening diseases and conditions. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the document at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4), and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the National Advisory Council for Human Genome Research.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552(b)(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice if hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections
Notice is hereby given of a change in the meeting of the Arthritis and Musculoskeltal and Skin Diseases Special Grants Review Committee, February 6, 2004, 8 a.m. to February 6, 2004, 5 p.m., Holiday Inn Chevy Chase, 5520 Wisconsin Avenue, Chevy Chase, MD 20815 which was published in the
The meeting location has been changed to the Marriott Bethesda Suites, 6711 Democracy Blvd., Bethesda, Maryland 20817. The date and time have not changed. The meeting is closed to the public.
Notice is hereby given of the cancellation of the Cancer Genetics Study Section, February 12, 2004, 8 a.m. to February 13, 2004, 5 p.m., Churchill Hotel, 1914 Connecticut Avenue, NW., Washington, DC 20009 which was published in the
The meeting is cancelled due to a lack of quorum.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provision set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
6701 Rockledge Drive, Room 5108, MSC 7854, Bethesda, MD 208892. (301) 435-2204;
Coast Guard, DHS. Maritime Administration, DOT.
Notice of application.
The Coast Guard and the Maritime Administration (MARAD) give notice, as required by the Deepwater Port Act of 1974, as amended, that they have received an application for the licensing of a deepwater port, and that the application appears to contain the required information. This notice summarizes the applicant's plans and the procedures that will be followed in considering the application.
Any public hearing held in connection with this application must be held no later than September 23, 2004, and it would be announced in the
You may submit comments identified by Coast Guard docket number USCG-2004-16877 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:
(1) Web Site:
(2) Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Washington, DC 20590-0001.
(3) Fax: (202) 493-2251.
(4) Delivery: Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is (202) 366-9329.
(5) Federal eRulemaking Portal:
If you have questions on this notice, call Lieutenant Commander Kevin Tone at 202-267-0226, or email at:
You may submit comments concerning this application. All comments received will be posted, without change, to
A deepwater port must be licensed, and the Act provides that a license applicant submit detailed plans for its facility to the Secretary of Transportation, along with its application. The Secretary has delegated the processing of deepwater port applications to the Coast Guard and MARAD. The Act allows 21 days following receipt of the application to determine if it contains all required information. If it does, we must publish a notice of application in the
Port Cabrillo's terminal would be a turret moored, ship hull-like offshore Floating, Storage and Regasification Unit (FSRU), and an interconnected send-out pipeline that would tie into the existing onshore natural gas distribution system of Southern California Gas (SoCalGas). The FSRU would include three independent Moss spherical storage tanks mounted within the vessel's hull, which would provide a total storage capacity of 276,000 cubic meters of LNG. The FSRU's deck would support LNG receiving and submerged combustion vaporization equipment and utilities, berthing accommodations for personnel, ship berthing and mooring system, and facilities for delivery of natural gas to a 30″ pipeline. The pipeline would be 21 miles in length and connect onshore at Ormond Beach (near Oxnard, CA) to an existing gas supply for distribution throughout the Southern California region.
The mooring turret would be fixed to the seabed with an 8-point anchoring system, and consist of 3 flexible riser pipes and a Pipeline Ending Manifold (PLEM).
The facility would be able to receive LNG carriers between 100,000 and 220,000 cubic meter capacities. All marine systems, communication, navigation aids and equipment necessary to conduct safe LNG carrier operations and receipt of product during specified atmospheric and sea states would be provided at the port. LNG offload would be accomplished through use of up to 4, 16″ diameter standard loading arm connections, and at a rate of up to 80,000 gallons per minute.
The regasification process would consist of lifting the LNG from storage tanks, pumping the cold liquid to pipeline pressure, subsequent vaporization across heat exchanging equipment and, finally, send-out through an interconnected pipeline. No gas conditioning would be required for the terminal since the incoming LNG would be pipeline quality. Port Cabrillo expects the terminal would vaporize and deliver up to 0.9 billion cubic feet per day (Bcfd) of natural gas to the pipeline.
Bureau of Customs and Border Protection, U.S. Department of Homeland Security.
General notice.
Pursuant to section 641 of the Tariff Act of 1930, as amended, (19 U.S.C. 1641) and the Customs Regulations (19 CFR 111.51), the following Customs broker local permits are canceled without prejudice.
Bureau of Customs and Border Protection, Department of Homeland Security.
General Notice.
Notice is hereby given that, pursuant to Title 19 of the Code of Federal Regulations at section 111.51(a), the following individual Customs broker license and any and all permits have been cancelled due to the death of the broker:
Bureau of Customs and Border Protection, U.S. Department of Homeland Security.
General notice.
Pursuant to section 641 of the Tariff Act of 1930, as amended, (19 U.S.C. 1641) and the Customs Regulations (19 CFR 111.51), the following Customs broker license are canceled without prejudice.
Bureau of Customs and Border Protection, U.S. Department of Homeland Security.
General notice.
Pursuant to section 641 of the Tariff Act of 1930, as amended, (19 U.S.C. 1641) and the Customs Regulations (19 CFR 111.51), the following Customs broker national permit is canceled without prejudice.
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice.
This notice amends the notice of a major disaster declaration for the Territory of American Samoa (FEMA-1506-DR), dated January 13, 2004, and related determinations.
January 20, 2004.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the Territory of American Samoa is hereby amended to include the Individual Assistance program, Categories C through G under the Public Assistance program, and the Hazard Mitigation Grant Program for the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of January 13, 2004:
The Island of Tutuila for Individual Assistance and Categories C through G under the Public Assistance program (already designated for debris removal (Category A) and emergency protective measures (Category B), including direct Federal assistance under the Public Assistance program.)
The Manu'a Islands for Individual Assistance and Public Assistance.
All islands in the Territory of American Samoa are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice.
This is a notice of the Presidential declaration of a major disaster for the Territory of American Samoa (FEMA-1506-DR), dated January 13, 2004, and related determinations.
January 13, 2004.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that, in a letter dated January 13, 2004, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the Territory of American Samoa, resulting from high winds, high surf and heavy rainfall associated with Tropical Cyclone Heta, on January 2-6, 2004, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act). I, therefore, declare that such a major disaster exists in the Territory of American Samoa.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes, such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide assistance for debris removal and emergency protective measures (Categories A and B), including direct Federal Assistance, under Public Assistance in the designated areas, and any other forms of assistance under the Stafford Act you may deem appropriate subject to completion of Preliminary Damage Assessments. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Direct Federal Assistance will be limited to 75 percent of the total eligible costs. If Other Needs Assistance under Section 408 of the Stafford Act and Hazard Mitigation are later warranted, Federal funding under these programs will also be limited to 75 percent of the total eligible costs. You are authorized to make adjustments as warranted to the non-Federal cost shares as provided under the Insular Areas Act, 48 U.S.C. 1469a(d).
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Under Secretary for Emergency Preparedness and Response, Department of Homeland Security, under Executive Order 12148, as amended, Thomas J. Costello, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following area of the Territory of American Samoa to have been affected adversely by this declared major disaster:
The Island of Tutuila for debris removal (Category A) and emergency protective measures (Category B), including direct Federal assistance under the Public Assistance program.
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice.
This notice amends the notice of a major disaster for the State of California (FEMA-1498-DR), dated October 27, 2003, and related determinations.
January 14, 2004.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that for this disaster, the incident period is reopened as October 21, 2003, through and including February 2, 2004, and the incident type expanded specifically for flooding, mudflow and debris flow directly related to the wildfires. During the expanded incident period, only those areas within the designated areas specifically determined by the Federal Coordinating Officer to be damaged or adversely affected as a direct result of the compromised watershed conditions and fire-generated debris caused by the wildfires will be considered eligible for assistance on a case-by-case basis.
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of California (FEMA-1505-DR), dated January 13, 2004, and related determinations.
January 13, 2004.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that, in a letter dated January 13, 2004, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of California, resulting from an earthquake on December 22, 2003, and continuing, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act). I, therefore, declare that such a major disaster exists in the State of California.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes, such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Individual Assistance and Public Assistance in the designated areas, and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance, Hazard Mitigation, and the Other Needs Assistance under Section 408 of the Stafford Act will be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Under Secretary for Emergency Preparedness and Response, Department of Homeland Security, under Executive Order 12148, as amended, Peter Martinasco, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of California to have been affected adversely by this declared major disaster:
San Luis Obispo County for Individual Assistance.
San Luis Obispo and Santa Barbara Counties for Public Assistance.
All counties within the State of California are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Transportation Security Administration (TSA), DHS.
Notice.
TSA invites public comment on the information collection requirement described in this notice, which will be submitted to the Office of Management and Budget (OMB) for approval in compliance with the Paperwork Reduction Act of 1995. The information collection would require the retention of certain information
Send your comments by March 29, 2004.
Comments may be mailed or delivered to Conrad Huygen, Privacy Act Officer, Information Management Programs, TSA-17, Office of Finance and Administration, Transportation Security Administration HQ, Floor 4, West Building, 601 South 12th Street, Arlington, VA 22202-4220.
For Paperwork Reduction Act issues: Conrad Huygen at the above address or by telephone at (571) 227-1954; facsimile (571) 227-2912. For other issues: Randall Fiertz, Director, Office of Revenue, Transportation Security Administration Headquarters, West Building, Floor 5, TSA-14, 601 South 12th Street, Arlington, VA 22202; e-mail: TSA-Fees@dhs.gov, telephone: (571) 227-2323.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement 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;
(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.
To help defray TSA's costs of providing civil aviation security services, and as authorized by 49 U.S.C. 44940, TSA published in the
In conjunction with the issuance of part 1511, TSA requested OMB approval to collect information necessary for TSA to establish the ASIF, including information about the carriers' individual and aggregate costs related to screening passengers and property in calendar year 2000. This information collection included submissions to TSA of data on the carriers' screening-related costs and also of independent audits of that data. On February 28, 2002, TSA published in the
Under Part 1511, carriers must retain any and all documents, records, or information related to the amount of the ASIF, including all information applicable to the carrier's calendar year 2000 security costs and information reasonably necessary to complete an audit. The information collection proposed under this notice is intended to apply to the retention requirement of 49 CFR 1511.9. This requirement includes retaining the source information for the calendar year 2000 screening costs reported to TSA; the calculations and allocations performed to assign costs submitted to TSA; information and documents reviewed and prepared for the required independent audit; the accountant's working papers, notes, worksheets, and other relevant documentation used in the audit; and, if applicable, the specific information leading to the accountant's opinion, including any determination that the accountant could not provide an audit opinion.
The information collection, submission, and retention requirement applies to each air carrier and foreign air carrier that incurred costs for the screening of passengers and property in calendar year 2000. It is estimated that the 195 respondent air carriers and foreign air carriers will each on average incur $330.60 annually, which includes $180.60 in records storage related costs and $150 in labor costs for 6 hours of records identification and management at $25 per hour. Based on these estimates, the aggregate total for all air carriers will be $64,467 during the first year. In subsequent years, each air carrier will incur $104.60 per year, which includes $54.60 in records storage and $50 in labor costs for 2 hours of records management at $25 per hour. For each subsequent year, the total burden for 195 air carriers is estimated at $20,397 per year. Thus, the annual average burden related to this requirement for all respondents combined over a three-year period is at a cost of $35,087. The subject records may be used by TSA to make determinations regarding security-related costs in calendar year 2000, including conducting reviews and otherwise ensuring compliance with part 1511.
Transportation Security Administration (TSA), DHS.
Notice of issuance.
TSA is providing notice that we have issued All-Cargo International Security Procedures to all foreign air carriers that perform all-cargo operations to, from, within, or overflying the United States that are not otherwise regulated under title 49 of the Code of Federal Regulations part 1546, Foreign Air Carrier Security. TSA has issued these procedures to respond to vulnerabilities in air cargo security.
Robert Baker, TSA-7, Office of Aviation Operations, Transportation Security Administration HQ, 3rd Floor, East Building, 601 South 12th Street, Arlington, VA 22202-4220; telephone (571) 227-3506, facsimile (571) 227-1947, e-mail
On November 17, 2003, the Department of Homeland Security's Transportation Security Administration (TSA) issued All-Cargo International Security Procedures (ACISP) for foreign air carriers that perform all-cargo operations using aircraft with a maximum certificated takeoff weight of
The term “overflying” includes any flight departing from an airport or other location outside the United States, its territories or possessions, which transits the territorial airspace of the United States enroute to an airport or other location outside the United States, its territories, or possessions. The territorial airspace of the United States includes the airspace over the United States, its territories and possessions, and the airspace overlying the territorial waters between the U.S. coast and 12 nautical miles from the U.S. coast.
The U.S. Intelligence Community continues to receive and evaluate a high volume of reporting indicating possible threats against U.S. interests. This reporting, combined with recent terrorist attacks, has created an atmosphere of concern. While the ability to conduct multiple, near simultaneous attacks against several targets is not new for such terrorist groups as Al-Qaeda, the manner in which these attacks are being conducted indicates refined capabilities and sophisticated tactics. The Department of Homeland Security remains concerned about Al-Qaeda's continued interest in aviation, including using cargo jets to carry out attacks on critical infrastructure. In recognition of this threat, TSA has made a determination that these circumstances require immediate action to ensure safety in air transportation.
The ACISP includes requirements that the foreign air carrier must conduct random inspections of certain air cargo, verify the identities of persons with access to these flights, ensure the security of the aircraft, and have in place procedures to respond to certain threats. Affected foreign air carriers must implement the procedures set forth in the ACISP which is available by contacting Mr. Robert Baker at the Transportation Security Administration: telephone (571) 227-3506, facsimile (571) 227-1947, e-mail
U.S. Geological Survey.
Notice of meeting.
Pursuant to Pub. L. 108-148, the NCGMP Advisory Committee will meet in Room 7000 A of the Main Interior Building, 1849 C Street, NW., Washington, DC. The Advisory Committee, composed of scientists from Federal Agencies, State Agencies, academic institutions, and private companies, will advise the Director of the U.S. Geological Survey on planning and implementation of the geologic mapping program.
Topics to be reviewed and discussed by the Advisory Committee include the:
• Progress of the NCGMP towards fulfilling the purposes of the National Geologic Mapping Act of 1992.
• Updates on the Federal, State, and educational components of the NCGMP.
• Strategic Goals.
February 10-11, commencing at 9 a.m. on February 10 and adjourning by 5 p.m. on February 11.
Laurel Bybell, U.S. Geological Survey, 908 National Center, Reston, Virginia 20192 (703) 648-5281.
Meetings of the National Cooperative Geologic Mapping Program Advisory Committee are open to the Public.
Bureau of Land Management, Interior.
Notice of Availability.
The Forest Service (FS) and Bureau of Land Management (BLM) have prepared a Final Supplemental Environmental Impact Statement (FSEIS) for management of Port-Orford-cedar in southwest Oregon. The Agencies are supplementing the analyses contained in the Final EISs for the Resource Management Plans for the Coos Bay, Medford, and Roseburg BLM Districts (1995) and the Land and Resource Management Plan for the Siskiyou National Forest (1988), generally federally managed forestlands in southwest Oregon.
The FSEIS is now available to the public. Requests to receive copies of the FSEIS should be sent to the address listed below. Alternately, the FSEIS is available on the Internet at
Publication of the Environmental Protection Agency (EPA) Notice of Availability and filing of the FSEIS in the
To request copies of the document, or to add your name to the mailing list, contact: Port-Orford-Cedar SEIS Team, P.O. Box 2965, Portland, Oregon 97208; or e-mail to
Ken Denton, SEIS Team Leader, P.O. Box 2965, Portland, Oregon 97208; telephone (503) 326-2368.
Port-Orford-cedar is killed by an exotic root disease (
Six alternatives are considered in detail in the FSEIS. Alternative 1, no action, continues the current direction of implementing available disease-management practices based on site-specific analysis. Alternative 2 uses the same management practices but adds a risk key to clarify the environmental conditions that require implementation of additional site-specific practices, and identifies and emphasizes protection within uninfested 7th field watersheds. Alternative 3 includes almost all elements of Alternative 2 and adds additional protections for 32 currently uninfested 6th field watersheds. Alternative 4 removes existing disease management practices but accelerates the resistant breeding program to provide resistant stock for all areas within ten years. Alternative 5 also removes existing disease management practices and stops development of resistant seed for remaining undeveloped breeding zones. Alternative 6 incorporates all elements of Alternative 2 and adds additional protections for uninfested 7th field watersheds. The preferred alternative is Alternative 2. A decision to select one of the action alternatives would amend the management direction in one FS Land and Resource Management Plan and three BLM Resource Management Plans in the planning area.
The FSEIS addresses deficiencies identified in a February 12, 2003, U.S District Court decision, which held the Resource Management Plan EIS for the Coos Bay District and a related project Environmental Assessment did not adequately analyze the cumulative effects of management activities on the health of Port-Orford-cedar outside the project area.
The analysis considers the entire natural range of Port-Orford-cedar, but only plans within the Oregon portion of the range are proposed for amendment at this time. The responsible official for lands administered by the Forest Service is the Forest Supervisor for the Siskiyou and Rogue River National Forests. The responsible official for public lands administered by the BLM is the State Director, Oregon State Office.
Minerals Management Service (MMS), Interior.
Notice of extension of an information collection (1010-0006).
To comply with the Paperwork Reduction Act of 1995 (PRA), MMS is notifying the public that we have submitted to OMB an information collection request (ICR) to renew approval of the paperwork requirements in the regulations under “30 CFR 256, Leasing of Sulphur or Oil and Gas in the Outer Continental Shelf,” and related forms. This notice also provides the public a second opportunity to comment on the paperwork burden of these regulatory requirements.
Submit written comments by February 26, 2004.
You may submit comments either by fax (202) 395-6566 or e-mail (
Arlene Bajusz, Rules Processing Team (703) 787-1600. You may also contact Arlene Bajusz to obtain a copy, at no cost, of the regulations and forms that require the subject collection of information.
The Independent Offices Appropriations Act of 1952 (IOAA), 31 U.S.C. 9701, authorizes Federal agencies to recover the full cost of services that provide special benefits. Under the Department of the Interior's (DOI) policy implementing the IOAA, MMS is required to charge the full cost for services that provide special benefits or privileges to an identifiable non-Federal recipient above and beyond those that accrue to the public at large. Instruments of transfer of a lease or interest are subject to cost recovery, and MMS regulations specify filing fees for these transfer applications.
The MMS uses the information required by 30 CFR 256 to determine if applicants are qualified to hold leases in the OCS. Specifically, MMS uses the information to:
• Verify the qualifications of a bidder on an OCS lease sale. Once the required information is filed with MMS, a qualification number is assigned to the bidder so that duplicate information is not required on subsequent filings.
• Develop the semiannual List of Restricted Joint Bidders. This identifies parties ineligible to bid jointly with each other on OCS lease sales, under limitations established by the EPCA.
• Ensure the qualification of assignees. Once a lease is awarded, the transfer of a lessee's interest to another qualified party must be approved by an MMS regional director.
• Obtain information and nominations on oil and gas leasing, exploration, and development and production. Early planning and consultation ensure that all interests and concerns are communicated to us for future decisions in the leasing process.
• Document that a leasehold or geographical subdivision has been surrendered by the record title holder.
• Verify that lessees have adequate bonding coverage. Respondents must submit their bonds certification forms:
To comply with the public consultation process, on September 10, 2003, MMS published a
If you wish to comment in response to this notice, you may send your comments to the offices listed under the
Notice is hereby given in accordance with the Federal Advisory Committee Act that a meeting of the Na Hoapili O Kaloko Honokohau, Kaloko-Honokohau National Historical Park Advisory Commission will be held at 10 a.m., February 6, 2004 at Kaloko-Honokohau National Historical Park headquarters, 73-4786 Kanalani St. Suite 14, Kailua-Kona, Hawaii.
The agenda will include Commission Membership, Alu Like Partnership, Resource and Educational Center, and various park projects.
The meeting is open to the public. Minutes will be recorded for documentation and transcribed for dissemination. Minutes of the meeting will be available to the public after approval of the full Advisory Commission. Transcripts will be available after 30 days of the meeting.
For copies of the minutes, contact Kaloko-Honokohau National Historical Park at (808) 329-6881.
Nominations for the following properties being considered for listing in the National Register were received by the National Park Service before January 10, 2004. Pursuant to section 60.13 of 36 CFR part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service,1201 Eye St. NW., 8th floor, Washington DC 20005; or by fax, (202) 371-6447. Written or faxed comments should be submitted by February 11, 2004.
Nominations for the following properties being considered for listing in the National Register were received by the National Park Service before January 3, 2004. Pursuant to section 60.13 of 36 CFR part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St., NW., 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service,1201 Eye St., NW., 8th floor, Washington DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by February 11, 2004.
Pursuant to Section 1008 of the Controlled Substances Import and Export Act (21 U.S.C. 958(1)), the Attorney General shall, prior to issuing a regulation under this Section to a bulk manufacturer of a controlled substance in Schedule II and prior to issuing a registration under Section 1002(a) authorizing the importation of such a substance, provide manufacturers holding registrations for the bulk manufacture of the substance an opportunity for a hearing.
Therefore, in accordance with section 1301.34 of title 21, Code of Federal Regulations (CFR), notice is hereby given that on October 29, 2003, Cambrex Charles City, Inc., 1205 11th Street, Charles City, Iowa 50616, made application by renewal to the Drug Enforcement Administration to be registered as an importer of Phenylacetone (8501), a basic class of controlled substance listed in Schedule II.
The firm plans to import the phenylacetone to manufacture amphetamine for distribution to its customers.
Any manufacturer holding, or applying for, registration as a bulk manufacturer of this basic class of controlled substances may file written comments on or objections to the application described above and may, at the same time, file a written request for a hearing on such application in accordance with 21 CFR 1301.43 in such form as prescribed by 21 CFR 1316.47.
Any such comments, objections, or requests for a hearing may be addressed, in quintuplicate, to the Deputy Assistant
This procedure is to be conducted simultaneously with and independent of the procedures described in 21 CFR 1301.34(b), (c), (d), (e), and (f). As noted in a previous notice at 40 FR 43745-46 (September 23, 1975), all applicants for registration to import basic class of any controlled substance in Schedule I or II are and will continue to be required to demonstrate to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration that the requirements for such registration pursuant to 21 U.S.C. 958(a), 21 U.S.C. 823(a), and 21 CFR 1311.42(a), (b), (c), (d), (e) and (f) are satisfied.
Pursuant to § 1301.33(a) of title 21 of the Code of Federal Regulations (CFR), this is notice that on September 25, 2003, Cambrex North Brunswick, Inc., Technology Center of New Jersey, 661 Highway One, North Brunswick, New Jersey 08902, made application by letter to the Drug Enforcement Administration (DEA) for registration as a bulk manufacturer of Sufentanil (9740), a basic class of Schedule II controlled substance.
The firm plans to manufacture Sufentanil to distribute in bulk to its customers.
Any other such applicant and any person who is presently registered with DEA to manufacture such substance may file comments or objections to the issuance of the proposed registration.
Any such comments or objections may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, United States Department of Justice, Washington, DC 20537, Attention: Federal Register Representative, Office of Chief Counsel (CCD) and must be filed no later than March 29, 2004.
Pursuant to section 1301.33(a) of title 21 of the Code of Federal Regulations (CFR), this is notice that on October 27, 2003, Cedarburg Pharmaceuticals, LLC, 870 Badger Circle, Grafton, Wisconsin 53024, made application by letter to the Drug Enforcement Administration (DEA) for registration as a bulk manufacturer of Fentanyl (9801), a basic class of Schedule II controlled substance.
The firm plans to manufacture in bulk for distribution to customers.
Any other such applicant and any person who is presently registered with DEA to manufacture such substance may file comments or objections to the issuance of the proposed registration.
Any such comments or objections may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, United States Department of Justice, Washington, DC 20537, Attention: Federal Register Representative, Office of Chief Counsel (CCD) and must be filed no later than March 29, 2004.
Pursuant to § 1301.33(a) of title 21 of the Code of Federal Regulations (CFR), this is notice that on October 21, 2003, Noramco, Inc., 1440 Olympic Drive, Athens, Georgia 30601, made application by renewal to the Drug Enforcement Administration (DEA) for registration as a bulk manufacturer of the basic classes of controlled substances listed below:
The firm plans to support its other manufacturing facility with manufacturing and analytical testing.
Any other such applicant and any person who is presently registered with DEA to manufacture such substance may file comments or objections to the issuance of the proposed registration.
Any such comments or objections may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, United States Department of Justice, Washington, DC 20537, Attention: Federal Register Representative Office of Chief Counsel (CCD) and must be filed no later than March 29, 2004.
Pursuant to § 1301.33(a) of title 21 of the Code of Federal Regulations (CFR), this is notice that on November 23, 2003, Noramco, Inc., 500 Old Swedes Landing Road, Wilmington, Delaware 19801, made renewal to the Drug Enforcement Administration (DEA) for registration as a bulk manufacturer of the basic classes of controlled substances listed below:
The firm plans to manufacture the listed controlled substances for
Any other such applicant and any person who is presently registered with DEA to manufacture such substances may file comments or objections to the issuance of the proposed registration.
Any such comments or objections may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, United States Department of Justice, Washington, DC 20537, Attention: Federal Register Representative, Office of Chief Counsel (CCD) and must be filed no later than March 29, 2004.
Pursuant to § 1301.33(a) of title 21 of the Code of Federal Regulations (CFR), this is notice that on October 27, 2003, Novartis Pharmaceutical Corporation, Attn: Security Department, Building 103, Room 335, 59 Route 10, East Hanover, New Jersey 07936, made application by renewal to the Drug Enforcement Administration (DEA) for registration as a bulk manufacturer of Methylphenidate (1724), a basic class of Schedule II controlled substance.
The firm plans to produce bulk product and finished dosage units for distribution to its customers.
Any other such applicant and any person who is presently registered with DEA to manufacture such substance may file comments or objections to the issuance of the proposed registration.
Any such comments or objections may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, United States Department of Justice, Washington, DC 20537, Attention: Federal Register Representative, Office of Chief Counsel (CCD) and must be filed no later than March 29, 2004.
Pursuant to Section 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on October 20, 2003, Siegfried (USA), Inc., Industrial Park Road, Pennsville, New Jersey 08070, made application by renewal to the Drug Enforcement Administration (DEA) for registration as a bulk manufacturer of the basic classes of controlled substances listed below:
The firm plans to manufacture the listed controlled substances for distribution as bulk products to its customers.
Any other such applicant and any person who is presently registered with DEA to manufacture such substance may file comments or objections to the issuance of the proposed registration.
Any such comments or objections may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, United States Department of Justice, Washington, DC 20537, Attention: Federal Register Representative, Office of Chief Counsel (CCD) and must be filed no later than March 29, 2004.
8 a.m. to 5 p,m. on Monday, March 8, 2004, 8 a.m. to 12 noon on Tuesday, March 9, 2004.
The Drake Hotel, 140 East Walton Place, Chicago, Illinois 60611.
Open.
Strategic planning Update; Safe Foundation Site Visit and Briefing: Division Reports; and Quarterly Report by Office of Justice Programs.
Larry Solomon, Deputy Director, (202) 307-3106, ext. 44254.
The following parties have filed petitions to modify the application of existing safety standards under section 101(c) of the Federal Mine Safety and Health Act of 1977.
Knott County Mining Company, PO Box 102, Kite, Kentucky 41828 has filed a petition to modify the application of 30 CFR 75.900 (Low and medium-voltage circuits serving three-phase alternating current equipment; circuits breakers) to its Mine 582 (MSHA I.D. No. 15-18522) located in Knott County, Kentucky. The petitioner proposes to use contactors for under-voltage protection in lieu of using the required circuit breakers. The petitioner states that an additional ground fault protection device will be provided for the affected circuits; the hazards caused by personnel rushing to the remote locations to reset breakers will be eliminated; and travelways will be safer and the miners will not have to take risks out of a sense of urgency to resume production. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Knott County Mining Company, PO Box 102, Kite, Kentucky 41828 has filed a petition to modify the application of 30 CFR 75.900 (Low and medium-voltage circuits serving three-phase alternating current equipment; circuits breakers) to its Puncheon Branch Mine (MSHA I.D. No. 15-17110) located in Knott County, Kentucky. The petitioner proposes to use contactors for under-voltage protection in lieu of using the required circuit breakers. The petitioner states that an additional ground fault protection device will be provided for the affected circuits; the hazards caused by personnel rushing to the remote locations to reset breakers will be eliminated; and travelways will be safer and the miners will not have to take risks out of a sense of urgency to resume production. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Little Buck Coal Company, 57 Lincoln Road, Pine Grove, Pennsylvania 17963 has filed a petition to modify the application of 30 CFR 49.2(b) to its #2 Slope (MSHA I.D. No. 36-08299) located in Schuylkill County, Pennsylvania. The petitioner requests a modification of the standard to permit the reduction of two mine rescue teams with five members and one alternate each, to two mine rescue teams of three members with one alternate for either team. The petitioner asserts that application of the existing standard would result in a diminution of safety to the miners and that the proposed alternative method would provide at least the same measure of protection as the existing standard.
River Hill Coal Company, Inc., PO Box 69, 1686 Tipple Road, Karthaus, Pennsylvania 16845 has filed a petition to modify the application of 30 CFR 77.700-1(c) (Approved methods of grounding) to its River Hill Coal Company Mine (MSHA I.D. No. 36-00884) located in Clearfield County, Pennsylvania. The petitioner requests a modification of the existing standard to permit an alternative method of compliance for providing a safer means of grounding three phase portable water pumps. The petitioner proposes to build and maintain a three phase generator truck and pump unit that will eliminate any potential between the metal frames of the unit and earth. The petitioner states that that generator would be resistance grounded through a direct neutral and the generator frames, and the truck frame and the pump frame would be connected to the resistance grounded neutral. The petitioner has listed specific procedures in this petition that would be followed when its proposed alternative method is implemented. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard with no diminution of safety to the miners.
L-Coal Company, RD #2, Box 630, Shamokin, Pennsylvania 17872 has filed a petition to modify the application of 30 CFR 75.332(b)(1) & (b)(2) (Working sections and working places) to its Lenig Tunnel Mine (MSHA I.D. No. 36-08288) located in Northumberland County, Pennsylvania. The petitioner proposes to use air passing through inaccessible abandoned workings and additional areas, which is not examined under other mandatory standards and is currently mixing with the air in the intake haulage slope, to ventilate the only active working sections; to ensure air quality by sampling intake air during pre-shift and on-shift examinations, not to exceed each 2 hours; and to suspend mine production when air quality fails to meet specified criteria. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
McElroy Coal Company, RD 1, Box 67A, Glen Easton, West Virginia 26039 has filed a petition to modify the application of 30 CFR 75.364(b)(2) (Weekly examination) to its McElroy Mine (MSHA I.D. No. 46-01437) located in Marshall County, West Virginia. Due to deteriorating roof conditions in the Main East return air entries, traveling the entire entry from One North seals to the Preparation Plant exhaust fan bottom would be unsafe to make weekly examinations. The petitioner proposes to establish a check point on each side of the bad top area to monitor the return air in the affected area. These monitoring stations will be established at Station Number 1 located in the air leg outby the Number One Seal, and Station Number 2 located in the entry toward Main East inby the Number Six seal of One North Seals. The petitioner states that all monitoring stations and the approaches to such stations will be maintained in safe condition at all times; tests for methane and the quantity and quality of air will be determined by a certified person on a weekly basis at each monitoring station; the date, initials of the examiner, time, and results of the examinations will be recorded in a book or on a date board at the monitoring stations; and results of the examinations will also be recorded in a book that will be kept on the surface and made available to all interested parties. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Persons interested in these petitions are encouraged to submit comments via e-mail to
The Board of Directors of the Legal Services Corporation will meet January 30, 2004 from 5 p.m. until 5:30 p.m. and continue on January 31, 2004, from 1:30 p.m. until conclusion of the Board's agenda.
January 30-31, 2004: The Melrose Hotel, 2430 Pennsylvania Avenue, NW., Washington, DC 20037.
Open, except that a portion of the meeting may be closed pursuant to a vote of the Board of Directors to hold an executive session. At the closed session, the Corporation's General Counsel will report to the Board on litigation to which the Corporation is or may become a party, and the Board may act on the matters reported. The closing is authorized by 5 U.S.C. 552b(c)(2) and LSC's corresponding
(1) Approval of agenda.
(2) Chairman's introduction and welcome of Helaine Barnett, new President of LSC.
(3) Public comment.
(4)Consider and act on motion to recess meeting to Saturday, January 31, 2004.
(5) Consider and act on nominations for the Chairmanship of the Board of Directors.
(6) Consider and act on nominations for the Vice Chairmanship of the Board of Directors.
(7) Approval of minutes of the Board's meeting of November 22, 2003.
(8) Approval of minutes of the Executive Session of the Board's meeting of November 22, 2003.
(9) Approval of minutes of the Executive Session of the Board's meeting of November 23, 2003.
(10) Chairman's Report.
(11) Members' Reports.
(12) President's Report.
(13) Acting Inspector General's Report.
(14) Consider and act on the report of the Board's Provision for the Delivery of Legal Services Committee.
(15) Consider and act on the report of the Board's Finance Committee.
a. Consider and act on space reallocation options at LSC Headquarters and related financial implications.
b. Consider and act on the President's and Acting Inspector General's recommendations for FY 2004 Consolidated Operating Budget or Revised Temporary Operating Budget.
(16) Consider and act on the report of the Board's Operations & Regulations Committee.
a. Consider and act on possible changes to LSC's organizational chart, lines of reporting and related position designations.
(17) Consider and act on the report of the Board's Search Committee for LSC President and Inspector General.
(18) Consider and act on proposed Resolution governing Board member compensation.
(19) Consider and act on proposed Resolution authorizing the Chairman to appoint a member to the Board of Directors of Friends of the Legal Services Corporation.
(20) Consider and act on Board's meeting schedule for the remainder of calendar year 2004.
(21) Consider and act on other business.
(22) Public comment.
(23) Consider and act on whether to authorize an executive session of the Board to address items listed below in Closed Session.
(24) Briefing
(25) Consider and act on General Counsel's report on potential and pending litigation involving LSC.
(26) Consider and act on motion to adjourn meeting.
Patricia D. Batie, Manager of Board Operations, at (202) 295-1500.
Special Needs: Upon request, meeting notices will be made available in alternate formats to accommodate visual and hearing impairments. Individuals who have a disability and need an accommodation to attend the meeting may notify Patricia D. Batie, at (202) 295-1500.
The Finance Committee of the Legal Services Corporation Board of Directors will meet January 30, 2004. The meeting will begin at 10 a.m. and continue until completion of the Committee's agenda.
The Melrose Hotel, 2430 Pennsylvania Avenue, NW., Washington, DC 20037.
Open.
1. Approval of agenda.
2. Approval of the minutes of the Committee's meeting of November 21, 2003.
3. Report on LSC's Temporary Operating Budget, Expenses and Other Funds Available through November 30, 2003.
4. Consider and act on the President's and Acting Inspector General's recommendations for FY 2004 Consolidated Operating Budget or Revised Temporary Operating Budget.
5. Consider and act on space reallocation options at LSC Headquarters and related financial implications.
6. Status report from the Inspector General on the Corporation's fiscal year 2003 annual audit.
7. Report from staff on results of survey of LSC recipients on Loan Repayment Assistant Programs and Retirement Programs.
8. Consider and act on other business.
9. Public comment.
10. Consider and act on adjournment of meeting.
Patricia D. Batie, Manager of Board Operations, at (202) 295-1500.
Upon request, meeting notices will be made available in alternate formats to accommodate visual and hearing impairments. Individuals who have a disability and need an accommodation to attend the meeting may notify Patricia D. Batie, at (202) 295-1500.
The Search Committee for LSC President and Inspector General of the Legal Services Corporation Board of Directors will meet January 30, 2004. The meeting will begin at 1:30 p.m. and continue until completion of the Committee's agenda.
The Melrose Hotel, 2430 Pennsylvania Avenue, NW., Washington, DC 20037.
Open.
1. Approval of agenda.
2. Consider and act on the process for the selection of an LSC Inspector General.
3. Public comment.
4. Consider and act on other business.
5. Consider and act on adjournment of meeting.
Patricia D. Batie, Manager of Board Operations, at (202) 295-1500.
Upon request, meeting notices will be made available in alternate formats to accommodate visual and hearing impairments. Individuals who have a disability and need an accommodation to attend the meeting may notify Patricia D. Batie, at (202) 295-1500.
The Provision for the Delivery of Legal Services Committee of the Legal Services Corporation Board of Directors will meet January 30, 2004. The meeting will begin at 2:30 p.m. and continue until completion of the Committee's agenda.
The Melrose Hotel, 2430 Pennsylvania Avenue, NW., Washington, DC 20037.
Open.
1. Approval of agenda.
2. Approval of the minutes of the Committee's meeting of November 21, 2003.
3. Presentations on Quality in Legal Services:
a. Presentation by Randi Youells, LSC Vice President for Programs.
b. Presentations by Jeanne Charn, Director, Bellow-Sacks Access to Civil, Legal Services Project, Harvard Law School.
c. Presentation by Lillian Johnson, Executive Director, Community Legal Services (AZ).
d. Presentation by Alan Houseman, Executive Director, The Center for Law and Social Policy.
e. Presentation by Colline Meek, Executive Director, Oklahoma Indian Legal Services.
4. Consider and act on other business.
5. Public comment.
6. Consider and act on adjournment of meeting.
Patricia D. Batie, Manager of Board Operations, at (202) 295-1500.
Upon request, meeting notices will be made available in alternate formats to accommodate visual and hearing impairments. Individuals who have a disability and need an accommodation to attend the meeting may notify Patricia D. Batie, at (202) 295-1500.
The Operations and Regulations Committee of the Legal Services Corporation Board of Directors will meet January 31, 2004. The meeting will begin at 10 a.m. and continue until completion of the Committee's agenda.
The Melrose Hotel, 2430 Pennsylvania Avenue, NW., Washington, DC 20037.
Open.
1. Approval of agenda.
2. Approval of the Committee's meeting minutes of November 22, 2003.
3. Consider and act on possible changes to LSC's organizational chart, lines of reporting and related position designations.
4. Public comment.
5. Consider and act on other business.
6. Consider and act on adjournment of meeting.
Patricia D. Batie, Manager of Board Operations, at (202) 295-1500.
Upon request, meeting notices will be made available in alternate formats to accommodate visual and hearing impairments. Individuals who have a disability and need an accommodation to attend the meeting may notify Patricia D. Batie, at (202) 295-1500.
National Aeronautics and Space Administration.
Notice of availability of the Draft Environmental Impact Statement (DEIS) for the International Space Research Park (ISRP) at the John F. Kennedy Space Center (KSC) and notice of meeting.
Pursuant to the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
NASA has included, as an appendix, and is requesting comment on, the Biological Assessment prepared pursuant to §§ 7(a)(2) and (b)(4) of the Endangered Species Act (ESA) (16 U.S.C. 1536(a)(2) and 16 U.S.C. 1536(b)(4)). NASA has also included in the appendix the U.S. Fish and Wildlife Service's (USFWS) Biological Opinion prepared under § 10(a)(1) of the ESA (16 U.S.C. 1539(a)(1)).
The agency must receive written or electronic mail comments on the DEIS and the other listed documents on or before 50 days from the date of publication in the Federal Register of the U.S. Environmental Protection Agency's notice of availability of the ISRP DEIS, whichever is later. Public meetings to receive comments on the DEIS will be held in the vicinity of KSC. The specific times and locations will be published in
The DEIS may be reviewed at the following locations of the Brevard County Library:
(a) Central Brevard Library & Reference Center, 308 Forrest Ave., Cocoa, FL 32922, (321) 633-1792;
(b) Cocoa Beach Branch Library, 550 North Brevard Ave., Cocoa Beach, FL 32931, (321) 868-1104;
(c) Melbourne Branch Library, 540 E. Fee Ave., Melbourne, FL 32901, (321) 952-4514;
(d) Merritt Island Branch Library, 1195 North Courtenay Parkway, Merritt Island, FL 32953, (321) 455-1369;
(e) St. Johns Branch Library, 6500 Carole Ave., Port St. John, FL 32927, (321) 633-1867;
(f) North Brevard Branch Library, 2121 S. Hopkins Ave., Titusville, FL 32780, (321) 264-5026.
The DEIS may also be examined at the following NASA locations by contacting the pertinent Freedom of Information Act Office:
(g) NASA, Ames Research Center, Moffett Field, CA 94035 (650-604-1181);
(h) NASA, Dryden Flight Research Center, P.O. Box 273, Edwards, CA 93523 (661-276-2704);
(i) NASA, Glenn Research Center at Lewis Field, 21000 Brookpark Road, Cleveland, OH 44135 (216-433-2755);
(j) NASA, Goddard Space Flight Center, Greenbelt Road, Greenbelt, MD 20771 (301-286-0730);
(k) NASA, Johnson Space Center, Houston, TX 77058 (281-483-8612);
(l) NASA, Langley Research Center, Hampton, VA 23681 (757-864-2497);
(m) NASA, Marshall Space Flight Center, Huntsville, AL 35812 (256-544-2030);
(n) NASA, Stennis Space Center, MS 39529 (228-688-2164). In addition, the DEIS may be examined at the following locations:
(o) NASA Headquarters, Library, Room lJ20, 300 E Street SW, Washington, DC, 20546 (202-358-0167);
(p) Jet Propulsion Laboratory, Visitors Lobby, Building 249, 4800 Oak Grove Drive, Pasadena, CA 91109 (818-354-5179).
The DEIS can be accessed electronically at
Limited copies of the DEIS are available, on a first request basis, by contacting Mr. Mario Busacca, NASA, Mail Code TA-C3, Kennedy Space Center, Florida, 32899; Telephone 321-867-8456; e-mail (
Submit all comments in writing to Mr. Mario Busacca, NASA, Mail Code TA-C3, Kennedy Space Center, Florida, 32899, or electronically to
Mr. Mario Busacca, NASA, Mail Code TA-C3, Kennedy Space Center, Florida, 32899; Telephone (321) 867-8456; e-mail (
The ISRP is intended to support NASA's mission, facilitate public-private collaboration, provide for complementary R&D objectives, and further space commercialization and development, consistent with the Space Act of 1958, as amended to authorize Enhanced Use Leasing (EUL) (42 U.S.C. 2459j). The mission of the FSA is to retain, expand, and diversify the State's space-related industry. As a center for R&D, the ISRP would bring together a dynamic mix of industry, academia, and government researchers to focus their combined strengths in areas of R&D critical to the long-term success of NASA and its partners, including, but not limited to, the FSA.
NASA KSC often collaborates with others in funding and implementing projects consistent with NASA's mission and the Space Act. Collaborators who would be located on KSC at the ISRP would be those whose activities require proximity to the launch and payload-processing infrastructure of KSC. Of these, non-governmental collaborators would need greater access and operational flexibility than is currently available at KSC. NASA has, therefore, determined a need to develop a site within KSC but outside the security fence that will provide the desired proximity and flexible operating environment. The proposed action is to lease approximately 142 ha (360 ac) in phases to the State of Florida (through the FSA), which would create an ISRPA to develop and manage the site as the ISRP. The lease period is proposed to be 50 years, after which NASA may extend the lease for an additional period of 25 years. Upon termination of the lease, the ISRPA would demolish the buildings and return the land unless reuse were negotiated. NASA would also retain the right to terminate the lease at any time to meet KSC requirements.
In Alternative 1, development would occur in 6 phases (Phases A-F) over 25 parcels, which would be serviced by approximately 4.5 kilometers (km) (2.8 miles (mi)) of roads. The parcels range from 1.8 to 10.2 ha (4.5 to 25.3 ac) in size with developable acreage between 1.8 and 6.2 ha (4.5 and 15.4 ac). Some parcels have dedicated no-build zones due to existing wetlands and stormwater ponds. The stormwater ponds would become part of the master stormwater system for the park. The proposed stormwater management system includes 10 connected treatment ponds for the collection and treatment of runoff generated from the developed parcels. Parcels would be developed to include 35 percent open space overall. The open space would include a central greenway, which would offer sidewalks and pedestrian access along wetlands and stormwater retention areas.
The area considered in Alternative 2 (including Phase F) is defined by 26 parcels, which would be serviced by approximately 4.2 (km) (2.6 (mi)) of roads. Of the 26 parcels, 25 parcels are proposed for development. These parcels range in size from 1.6 to 10.0 ha (4.0 to 24.0 ac) with developable acreage from 1.5 to 5.6 ha (3.7 to 13.8 ac). A 34.7 ha (85.7 ac) parcel has been established under this development plan to protect an extensive wetlands system. Four stormwater management ponds are proposed for the collection and treatment of runoff generated from the developed parcels. The Alternative 2 land use plan offers extensive greenways and sidewalks for pedestrian access along the wetland conservation area and between parcels.
Public involvement is a key element in the NEPA process. NASA initiated public involvement when it issued the October 8, 2002 Notice of Intent to prepare an EIS and conduct scoping meetings for the proposed action. All responses received from interested parties during the 45-day scoping period (October 8, 2002 through December 9, 2002) are presented in Appendix A of the DEIS. The primary concerns raised in public comments relate to traffic, socio-economics, housing, security, air quality, wetlands, and wildlife. These concerns were addressed in the DEIS. Impacts to soils from construction were indicated and thus were also analyzed.
Chapter 62-256 of the Florida Administrative Code (F.A.C.) allows the use of air curtain incinerators to dispose of ground cover and construction debris from land clearing activities. If an air curtain incinerator were properly used as prescribed in F.A.C. 62-256, the air emissions would remain minimal and thus have no significant impacts.
Although vehicular traffic would increase, the levels would not be expected to be larger than what has occurred in the past on the Kennedy Space Center in the 1970's at the height of the Apollo Program. In addition, the vehicles today are more efficient and have better emission controls. However, the increase in traffic could be expected to produce a significant impact to local air quality at KSC. This traffic would not have a significant negative impact on air quality outside KSC in Brevard County and the remaining study region. Because the potential significant decrease in air quality is estimated to be local to KSC and no justification or need currently exists to develop a regional mass transport systems plan, the ISRPA would encourage the use of the Brevard County sponsored commuter van pool systems and other public transportation systems such as Space Coast Area Transit, known locally as SCAT. As a part of the NASA and the FSA educational outreach activities, NASA would provide educational information on the value of reducing traffic and improving air quality within KSC. There are few direct mitigating actions that could be performed by NASA or FSA.
Construction runoff into preserved wetlands could cause indirect impacts to water quality. To minimize disturbances to wetlands from construction-related runoff, construction would be avoided within the 7.6 m (25 ft) upland buffer extending from the delineated edge of preserved wetlands toward the upland. Standard BMPs would be implemented to minimize runoff into these protected areas. Dewatering into the sensitive hammock wetlands and swale marshes would be prohibited.
The indirect effects of habitat fragmentation, increased traffic on multiple roads, and increased human presence potentially resulting from implementation of the ISRP under Alternative 1 were determined in the Biological Assessment and Biological Opinion as “likely to adversely affect” the eastern indigo snake. The potential for the proposed action to result in incidental take of the indigo snake in the form of harm was considered significant. The USFWS Biological Opinion approved incidental take of all individuals.
The impact of habitat fragmentation and roads under Alternative 1 on Federal and State-listed threatened or endangered wading birds and the southeastern American kestrel (
If Alternative 2 were selected, several Federal and State-listed threatened or endangered species would be impacted. Both the Florida scrub-jay (
A Biological Opinion was not sought from the USFWS. If NASA selected Alternative 2, development could not proceed without obtaining a Biological Opinion from the USFWS for the eastern indigo snake and Florida scrub jay, and other federally listed threatened or endangered species, indicating no jeopardy to the species and no adverse modification of critical habitat, subject to limits on incidental take and implementation of recommended reasonable and prudent measures. The eastern indigo snake is also protected under Florida law.
The Biological Assessment determined that implementation of the proposed ISRP action on the Alternative 2 site would cause the direct loss of 73.4 ha (181.4 ac) of occupied Florida scrub-jay habitat resulting in incidental take, in the form of harm, of a minimum of eight Florida scrub-jay territories. Based on the long-term research of this local population the majority of the territories that would be impacted under this alternative are likely sources to the local KSC scrub-jay population. The Tel-4 Road (B Avenue SW) population is the only population on KSC that is not in decline and is known to be increasing. The proposed ISRP development on the Alternative 2 site has the potential to jeopardize core recovery efforts of this species at KSC. Development would not proceed on Alternative 2 without preparation of a new Biological Assessment, formal consultation with the USFWS, and procurement of a Biological Opinion, including a finding of “no jeopardy” and an Incidental Take Statement for this species. This potential impact would be considered significant.
Implementation of Alternative 2 would also have the potential to affect 125 to 206 gopher tortoises (
Development could not proceed under Alternative 2 until a permit is secured pursuant to the requirements of Rules 68A-25.002 and 68A-27.005, F.A.C. authorizing the incidental take or relocation of gopher tortoises, including any encountered State-listed commensals.
Alternative 2 also has the potential, due to disturbance of soils and surface vegetation, to impact local and globally rare freshwater swale marshes, which harbor threatened populations of such species as Curtiss reedgrass (
The potential exists for the effects of the various projects in the vicinity combined with the significant direct and indirect effects of the ISRP under Alternative 2 to result in highly significant impacts to biological resources. This finding considers the critical importance of the biological resources existing on and surrounding this site. The ability to provide adequate compensation for potential cumulative impacts would be of concern, particularly for impacts on the regionally important Tel-4 Road (B Avenue SW) Florida Scrub-jay population and the local and globally rare freshwater swale marshes, and
Lighting along roads and around and within buildings within newly developed areas of Alternative 2 (Phases A-E) may impact the federally listed bald eagle (
Cumulative impacts of habitat fragmentation from habitat loss and introduction of new roads and increased human presence under Alternative 2 could cause the mortality or substantial harassment of numerous individual indigo snakes. Over time, this impact could negatively influence population viability. To reduce the adverse effects of this cumulative impact NASA would: (1) create an education program aimed at informing employees about the indigo snake's protected status and consequences of violating applicable laws, the indigo snake's high susceptibility to road mortality, its beneficial roles, and its generally gentle disposition towards humans (Breininger
Under the No Action Alternative, no adverse impacts would result. The activities associated with the development and operation of the proposed ISRP would not occur, therefore, no additional activities would occur to produce such impacts or contribute to cumulative impacts. Alternative 1 (after the citrus grove leases expire) and Alternative 2 sites would continue to be part of the undeveloped buffer area at KSC and as such be managed by the USFWS as part of the Merritt Island National Wildlife Refuge.
National Aeronautics and Space Administration (NASA).
Notice of Meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces a meeting of the NASA Advisory Council, Biological and Physical Research Advisory Committee.
Thursday, February 12, 2004, from 9 a.m. until 6 p.m. and Friday, February 13, 2004 from 8 a.m. until 12 Noon.
NASA Headquarters, 300 E Street SW, Room 9H40, Washington, DC 20546.
Dr. Bradley Carpenter, Code UG, National Aeronautics and Space Administration, Washington, DC 20546, 202/358-0826.
The meeting will be open to the public up to the seating capacity of the meeting room. The agenda for the meeting is as follows:
Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID, before receiving an access badge. Foreign nationals attending this meeting will be required to provide the following information: Full name; gender; date/place of birth; citizenship; visa/green card information (number, type, expiration date); employer/affiliation information (name of institution, address, county, phone); and title/position of attendee. To expedite admittance, attendees can provide identifying information in advance by contacting Dr. Brad Carpenter via e-mail at
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
National Indian Gaming Commission.
Notice is hereby given, pursuant to 25 CFR 514.1(a)(3), that the National Indian Gaming Commission has adopted preliminary annual fee rates of 0.00% for tier 1 and 0.069% (.0069) for tier 2 for calendar year 2004. these rates shall apply to all assessable gross revenues form each gaming operation under the jurisdiction of the Commission. If a tribe has a certificate of self-regulation under 25 CFR part 518, the preliminary fee rate on class II revenues for calendar year 2004 shall be one-half of the annual fee rate, which is 0.0345% (.00345).
Bobby Gordon, National Indian Gaming Commission, 1441 L Street, NW., Suite 9100, Washington, DC 20005; telephone (202) 632-7003; fax (202) 632-7066 (these are not toll-free numbers).
The Indian Gaming Regulatory Act established the National Indian Gaming Commission which is charged with, among other things, regulating gaming on Indian lands.
The regulations of the Commission (25 CFR part 514), as amended, provide for a system of fee assessment and payment that is self-administered by gaming operations. Pursuant to those regulations, the Commission is required to adopt and communicate assessment rates; the gaming operations are required to apply those rates to their revenues, compute the fees to be paid, report the revenues, and remit the fees to the Commission on a quarterly basis.
The regulations of the Commission and the preliminary rate being adopted today are effective for calendar year 2004. Therefore, all gaming operations within the jurisdiction of the Commission are required to self-administer the provisions of these regulations and report and pay any fees that are due to the Commission by March 31, 2004.
By direction of the Board.
Nuclear Regulatory Commission.
Notice of availability of environmental assessment and finding of no significant impact.
Kathy Dolce Modes, Nuclear Materials Safety Branch 2, Division of Nuclear Materials Safety, Region I, 475 Allendale Road, King of Prussia, Pennsylvania 19406, telephone (610) 337-5251, fax (610) 337-5269; or by e-mail:
The U.S. Nuclear Regulatory Commission (NRC) is considering the issuance of a license amendment to the Department of Justice—Federal Bureau of Investigation for Materials License No. 08-00480-06, to authorize release of its facility in Washington, DC for unrestricted use and has prepared an Environmental Assessment (EA) in support of this action in accordance with the requirements of 10 CFR part 51. Based on the EA, the NRC has concluded that a Finding of No Significant Impact (FONSI) is appropriate.
The purpose of the proposed action is to allow for the release of the licensee's Washington, DC facility for unrestricted use. The Department of Justice—Federal Bureau of Investigation was authorized by NRC from March 25, 1965, to use radioactive materials for research and development purposes at the site. On September 8, 2003, the Department of Justice—Federal Bureau of Investigation requested that NRC release the facility for unrestricted use. The Department of Justice—Federal Bureau of Investigation has conducted surveys of the facility and determined that the facility meets the license termination criteria in subpart E of 10 CFR part 20.
The NRC staff has evaluated the Department of Justice—Federal Bureau of Investigation's request and the results of the surveys and has concluded that the completed action complies with the criteria in subpart E of 10 CFR part 20. The staff has prepared the EA (summarized above) in support of the proposed license amendment to terminate the license and release the facility for unrestricted use. The staff has found that the environmental impacts from the proposed action are bounded by the impacts evaluated by the “Generic Environmental Impact Statement in Support of Rulemaking on Radiological Criteria for License Termination of NRC-Licensed Facilities” (NUREG-1496). On the basis of the EA, the NRC has concluded that the environmental impacts from the proposed action are expected to be insignificant and has determined not to prepare an environmental impact statement for the proposed action.
The EA and the documents related to this proposed action, including the application for the license amendment and supporting documentation, are available for inspection at NRC's Public Electronic Reading Room at
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of availability of environmental assessment and finding of no significant impact.
Betsy Ullrich, Nuclear Materials Safety Branch 2, Division of Nuclear Materials Safety, Region I, 475 Allendale Road, King of Prussia, Pennsylvania 19406, telephone (610) 337-5040, fax (610) 337-5269; or by e-mail:
The U.S. Nuclear Regulatory Commission (NRC) is considering the issuance of a license amendment to OSI Pharmaceuticals, Inc. for Materials License No. 37-30433-01, to authorize release of its facility in Horsham, Pennsylvania for unrestricted use and has prepared an Environmental Assessment (EA) in support of this action in accordance with the requirements of 10 CFR part 51. Based on the EA, the NRC has concluded that a Finding of No Significant Impact (FONSI) is appropriate.
The purpose of the proposed action is to allow for the release of the licensee's Horsham, Pennsylvania facility for unrestricted use. OSI Pharmaceuticals, Inc. was authorized by NRC from March 9, 1998, to use radioactive materials for research and development purposes at the site. On July 10, 2003, OSI Pharmaceuticals, Inc. requested that NRC release the facility for unrestricted use. OSI Pharmaceuticals, Inc. has conducted surveys of the facility and determined that the facility meets the license termination criteria in subpart E of 10 CFR part 20.
The NRC staff has evaluated OSI Pharmaceuticals, Inc.'s request and the results of the surveys and has concluded that the completed action complies with the criteria in subpart E of 10 CFR part 20. The staff has prepared the EA (summarized above) in support of the proposed license amendment to terminate the license and release the facility for unrestricted use. The staff has found that the environmental impacts from the proposed action are bounded by the impacts evaluated by the “Generic Environmental Impact Statement in Support of Rulemaking on Radiological Criteria for License Termination of NRC-Licensed Facilities” (NUREG-1496). On the basis of the EA, the NRC has concluded that the environmental impacts from the proposed action are expected to be insignificant and has determined not to prepare an environmental impact statement for the proposed action.
The EA and the documents related to this proposed action, including the application for the license amendment and supporting documentation, are available for inspection at NRC's Public Electronic Reading Room at
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of availability of Environmental Assessment and Finding of No Significant Impact for license application.
Yawar Faraz, Project Manager, Special Projects and Inspection Branch, Division of Fuel Cycle Safety and Safeguards, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC, 20555-0001. Telephone: (301) 415-8113; fax number: (301) 415-5390; e-mail:
The U.S. Nuclear Regulatory Commission (NRC) is prepared to issue Material License No. 70-7003 to United States Enrichment Corporation Inc. (USEC) (the applicant), to authorize possession and use of source and special nuclear material at the American Centrifuge Lead Cascade Facility (Lead Cascade) in Piketon, Ohio. NRC has prepared an Environmental Assessment (EA) in support of these actions in accordance with the requirements of 10 CFR part 51. Based on the EA, the NRC has concluded that a Finding of No Significant Impact (FONSI) is appropriate. The license will be issued following the publication of this notice.
The purpose of the proposed action is to authorize possession and use of source and special nuclear material at the applicant's Lead Cascade facility in Piketon, Ohio. The Lead Cascade facility would have up to 240 operable centrifuges for testing in order to provide reliability information on the machines and auxiliary systems for a commercial uranium enrichment facility. The Lead Cascade facility would recycle tails and product with no product withdrawals except for sampling. The applicant proposes to install the Lead Cascade facility in leased portions of the existing Department of Energy (DOE) Gas Centrifuge Enrichment Plant (GCEP) located at the Portsmouth Gaseous Diffusion Plant site in Piketon, Ohio. In the mid-1980's, DOE had produced enriched uranium using hundreds of centrifuges in it's GCEP facility.
On February 12, 2003, USEC Inc. requested that NRC approve the proposed application. USEC Inc.'s request for the proposed action was previously noticed in the
The NRC has prepared an EA in support of the proposed license application. The NRC concludes that the proposed action complies with the applicable parts of title 10, Code of Federal Regulations (10 CFR) for adequate protection of the public health and safety, and protection of the environment. For example, NRC staff finds that public exposure to radiation from the proposed action will be less than 0.0001% of the limits in 10 CFR part 20. On the basis of the assessment, the NRC staff concludes that environmental impacts associated with the proposed action would not be significant and do not warrant the preparation of an Environmental Impact Statement (EIS). Accordingly, it has been determined that a Finding of No Significant Impact is appropriate.
On the basis of the EA, NRC has concluded that there are no significant environmental impacts from the
The EA and the documents related to this proposed action, including the application for the license amendment and supporting documentation, are available for inspection at NRC's Public Electronic Reading Room at
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Weeks of January 26, February 2, 9, 16, 23, March 1, 2004.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
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.
9:30 a.m. Briefing on Status of Office of Chief Financial Officer Programs, Performance, and Plans (Public Meeting) (Contact: Edward L. New, 301-415-5646).
This meeting will be webcast live at the Web address—
9:30 a.m. Discussion of Security Issues (Closed—Ex. 1).
9:30 a.m. Meeting with UK Regulators to Discuss Security Issues (Closed—Ex. 1)
9:30 a.m. Meeting with Advisory Committee on the Medical Uses of Isotopes (ACMU) & NRC Staff (Public Meeting) (Contact: Angela Williamson, 301-415-5030).
This meeting will be webcast live at the Web address—
9:30 a.m. 25th Anniversary Three Mile Island (TMI) Unit 2 Accident Presentation (Public Meeting) (Contact: Sam Walker, 301-415-1965).
This meeting will be webcast live at the Web address—
2:45 p.m. Discussion of Security Issues (Closed—Ex. 1).
1:30 p.m. Briefing on Status of Office of Nuclear Material Safety and Safeguards (NMSS) Programs, Performance, and Plans—Waste Safety (Public Meeting).
This meeting will be webcast live at the Web address—
*The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292. Contact person for more information: Timothy J. Frye, (301) 415-1651.
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
Office of Personnel Management.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (Public Law 104-13, May 22, 1995), this notice announces that the Office of Personnel Management (OPM) has submitted to the Office of Management and Budget (OMB) a request for reclearance of a revised information collection. SF 3104, Application for Death Benefits/Federal Employees Retirement System (FERS), is used by persons applying for death benefits which may be payable under FERS because of the death of an employee, former employee, or retiree who was covered by FERS at the time of his/her death or separation from Federal Service. SF 3104A, Survivor Supplement (FERS) (attached to the SF 3104) requests information from the survivor which is used by OPM to determine entitlement to a survivor annuity supplement (supplementary annuity). SF 3104B, Documentation and Elections in Support of Application for Death Benefits when Deceased was an Employee at the Time of Death, is used by applicants for death benefits under FERS if the deceased was a Federal employee at the time of death.
It is estimated that approximately 7,481 SF 3104s will be processed annually. This form requires approximately 60 minutes to complete. An annual burden of 7,481 hours is estimated. Approximately 3,366 SF 3104Bs are expected to be processed annually. It is estimated that the form requires approximately 60 minutes to complete. An annual burden of 3,366 hours is estimated. The total annual burden is 10,847.
For copies of this proposal, contact Mary Beth Smith-Toomey on (202) 606-8358, FAX (202) 418-3251 or via E-mail to
Comments on this proposal should be received on or before February 26, 2004.
Send or deliver comments to—
Cyrus S. Benson, Team Leader, Publications Team, RIS Support Services, (202) 606-0623.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 11Ac1-3 requires disclosure on each new account and on a yearly basis thereafter, on the annual statement, the firm's policies regarding receipt of payment for order flow from any market makers, exchanges or exchange members to which it routes customers' order in national market system securities for execution; and information regarding the aggregate amount of monetary payments, discounts, rebates or reduction in fees received by the firm over the past year.
It is estimated that there are approximately 6,752 registered broker-dealers.
Records generated by forms pursuant to this rule must be kept for three years. The records required by this rule are mandatory to assist the Commission in its regulatory role. This rule does not involve the collection of confidential information. Please note that 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.
General comments regarding the estimated burden hours 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 10102, New Executive Office Building, Washington, DC 20503; and (ii) R. Corey Booth, Director/Chief Information Officer, Office of Information Technology, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549. Comments must be submitted to OMB within 30 days of this notice.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold the following meeting during the week of January 26, 2004:
A Closed Meeting will be held on Thursday, January 29, 2004 at 2 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters may also be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c) (3), (5), (7), (9B), and (10) and 17 CFR 200.402(a) (3), (5), (7), (9ii), and (10), permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Atkins, as duty officer, voted to consider the items listed for the closed meeting in a closed session and that no earlier notice thereof was possible.
The subject matters of the Closed Meeting scheduled for Thursday, January 29, 2004 will be:
Formal orders of investigation;
Institution and settlement of administrative proceedings of an enforcement nature;
Institution and settlement of injunctive actions;
Litigation matter; and
Adjudicatory matter.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 942-7070.
On July 14, 2003, the Boston Stock Exchange, Inc. (“BSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change was published for comment in the
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
It is therefore ORDERED, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On September 5, 2003, the Chicago Board Options Exchange, Inc. (“CBOE” or “Exchange”) submitted to the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change consists of revisions to DTC's fee schedule for services.
In its filing with the Commission, DTC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in item IV below. DTC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to adjust the fees DTC charges for various services so that the fees are aligned with DTC's estimated service costs for 2004, effective with respect to services provided on and after January 1, 2004.
DTC believes that the proposed rule change is consistent with the requirements of section 17A of the Act and the rules and regulations
DTC perceives no impact on competition by reason of the proposed rule change.
Written comments from DTC participants or others have not been solicited or received on the proposed rule change.
Because the foregoing rule change establishes or changes fees to be imposed by DTC, it 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 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”),
Nasdaq is filing with the Commission a proposed rule change concerning its decision to terminate the Nasdaq Application of the Primex Auction System (“Primex” or “System”). Nasdaq has designated this proposal as non-controversial and requests that the Commission waive the 30-day pre-operative waiting period contained in Exchange Act Rule 19b-4(f)(6)(iii).
Proposed new language is in
For purposes of this Rule Series, unless the context requires otherwise:
(a) “Application” or “Nasdaq Application” as used in this Rule Series, and “Nasdaq Application of the Primex Auction System” as used throughout the NASD Rules means the voluntary Nasdaq trading service facility that permits NASD member firms, among other things, to submit orders in Primex Eligible Securities to be exposed to a Crowd of Participants in an electronic auction format for the purpose of obtaining an execution for their own account or the account of a customer; to have required reports of any resulting trades automatically disseminated to the public and the industry; and to “lock in” these trades as necessary by sending both sides to the applicable clearing agency designated by the Participants involved for clearance and settlement, all in accordance with this Rule Series and other applicable rules and policies of Nasdaq.
(b) “Primex Auction System Participant,” “Participant,” or “Participant Firm” means a broker-dealer registered with the NASD that, when authorized, can access and participate in the Application for its customers or its own account, consistent with this Rule Series. Participants access the Application through one or more Subscribers associated with that Participant within the Application.
(c) “Subscriber” means a user associated with a Participant who, when authorized, can access and participate in the Application on behalf of that Participant, consistent with this Rule Series. A user also can access and participate directly in the Application on its own behalf, but in the name of a Participant, subject to a sponsored arrangement with that Participant, and consistent with these Rules.
(d) “Firm Administrator” means a Subscriber who, for a particular Participant, is authorized among other things to: (1) Monitor and control access to and participation in the Application by all of that Participant's Subscribers, including establishing Credit Limits for each of the Participant's Subscribers who access and participate in the Application on behalf or in the name of that Participant; and (2) view the status of the Clearing Limits applicable to the Participant overall.
(e) “Nasdaq Supervisor” means the Nasdaq staff responsible for establishing and supervising certain operational functions with respect to the operation of the Application.
(f) Credit Limits” means the dollar amount of aggregated purchases or sales established within the Application by a Participant's Firm Administrator for each of the Participant's Subscribers which, when reached, causes the Application to: (1) Inhibit any future executions or the entry of future interest for that Subscriber; (2) cancel any orders and withdraw any Indications resident within the Application for that Subscriber; and (3) send a notice to that Subscriber, its Firm Administrator, and the Nasdaq Supervisor. Credit Limits may be established, monitored, and modified by the Firm Administrator on a real-time basis directly through the Application.
(g) “Clearing Limits” means the dollar amount of aggregated purchases and sales (calculated separately and not netted) of all Subscribers, collectively for a Participant, effected through or in the name of that Participant, that is established within the Application for that Participant, which, when reached, causes the Application to: (1) Inhibit any future executions for all Subscribers associated with that Participant; (2) cancel any orders and withdraw any Indications resident within the Application for all Subscribers associated with that Participant; and (3) send a notice to that Participant's Firm Administrator, the Nasdaq Supervisor, and to the clearing broker for that Participant provided that the clearing broker also is a Participant. If the clearing broker is not a Participant in the Application, then the Nasdaq Supervisor will notify the clearing broker that the Clearing Limits have been reached as soon as practicable. Clearing Limits for a Participant may be monitored on a real-time basis by the Participant's Firm Administrator and can be established, monitored, and modified by the Firm Administrator of the Participant's clearing broker, provided the clearing broker also is a Participant. Clearing Limits also can be established and modified by the Nasdaq Supervisor on behalf of the clearing broker.
(h) “Crowd,” “Primex Crowd” or “Crowd Participant” means Primex Auction System Participants that, when authorized, can access and participate in the Application consistent with this Rule Series by: (1) Submitting orders to be exposed to other Participants; (2)
(i) “Watch List” means the list of Primex Eligible Securities identified by a Crowd Participant for which the Crowd Participant will be notified by Nasdaq electronically when one or more orders in such securities is exposed in an Auction and made available for response by the Crowd.
(j) “Primex Auction Market Maker” means a Participant that, when authorized, may participate in the Application: (1) As a Primex Auction Market Maker consistent with Rule 5020 with respect to those Primex Eligible Securities for which the Participant is registered as a Primex Auction Market Maker; and (2) as a Crowd Participant consistent with Rule 5019 with respect to any Primex Eligible Security.
(k) “Primex Eligible Security” means any security listed on the Nasdaq Stock Market and any exchange-listed security eligible for participation in the Intermarket Trading System.
(l) Reserved
(m) “Market Order” means an order submitted to the Application to purchase or sell a security at the most advantageous price(s) obtainable, without a specified, fixed price.
(n) “Fixed Price Order” means an order submitted to the Application to purchase or sell a security at a specified, fixed price or better.
(o) “Minimum Relative Price Improvement” means a condition that a Participant may attach to a market order consistent with Rule 5014(a), expressed in terms of the minimum relative price improvement required to execute the order. This condition is expressed in terms relative to the best bid (for orders to sell) or best offer (for orders to buy) displayed in the NBBO at the time the order is eligible to be executed against within the Application. Neither the existence nor amount of any Minimum Relative Price Improvement condition is displayed, exposed or communicated to any Participant when attached to an order.
(p) “Response” means an instruction submitted to the Application by a Participant, for the purpose of responding to an order or orders being exposed to the Crowd, consistent with Rule 5018.
(q) “Predefined Relative Indication” or “PRI” means an instruction that a Participant can submit to the Application for the purpose of responding to an order(s) in an Auction, and which does not contain a specific, fixed price, but is expressed in terms relative to the best bid (for PRIs to buy) or offer (for PRIs to sell) publicly displayed for the security, consistent with Rule 5018. While resident within the Application, PRIs are ranked to respond to incoming orders in relative price/time priority, but are not displayed, exposed or communicated to any other Participant.
(r) “Go-Along Indication” means an instruction that a Participant can submit to the Application for the purpose of responding to an order(s) in an Auction, and which does not contain a specific, fixed price, consistent with Rule 5018. A Go-Along Indication will be triggered to respond to an Auction at a price equal to the best bid (for Go-Along Indications to buy) or best offer (for Go-Along Indications to sell) publicly displayed whenever there has been at least one contemporaneous Crowd execution at such bid or offer, provided there are no PRIs or other orders available to execute against the order(s) in the Auction. While resident within the Application, Go-Along Indications are not displayed, exposed or communicated to any other Participant.
(s) “Auction” means the automated process through which orders in Primex Eligible Securities are exposed to Crowd Participants. Orders for the same security being exposed simultaneously (
(t) “Public Order” or “Public Customer Order” means an order for the account of a customer, and not for the account of a broker-dealer, regardless of whether the customer is that of the Participant entering the order or another firm that has routed the customer order to the Participant.
(u) “Professional Order” means an order for the proprietary account of a broker-dealer, regardless of whether the broker-dealer is a market maker or specialist, and regardless of whether it is the Participant's own order or the proprietary order of another broker-dealer routed to the Participant.
(v) “Market Maker Guarantee” means the feature within the Application that allows a Participant registered as a Primex Auction Market Maker to provide an automatic execution against public customer orders it submits to the Application for exposure in an Auction where such orders are not otherwise subject to an execution. The Application will automatically execute any unexecuted balance of the order against that Primex Auction Market Maker, after the Auction exposure period for the order has expired, consistent with Rule 5020. The Market Maker Guarantee shall be provided at a price equal to the best publicly quoted offer price (for orders to buy) or best publicly quoted bid price (for orders to sell) existing for the security at the time when such exposure period for the order has expired, for any amount of shares established by the Primex Auction Market Maker for the order.
(a) The Application shall be available on a voluntary basis to any NASD member in good standing that chooses to register as a Participant in the Primex Auction System. Such registration shall be conditioned upon the Participant's initial and continuing compliance with the following requirements:
(1) Execution of the necessary agreements with Nasdaq or its affiliate;
(2) Membership in, or access arrangement with a participant of, a clearing agency registered with the Commission that maintains facilities through which Primex Auction System compared trades may be settled;
(3) Compliance with all applicable rules and operating procedures of Nasdaq (including these rules) and the Commission;
(4) Maintenance of the physical security of the equipment located on the premises of the Participant to prevent the improper use or access to Nasdaq systems, including unauthorized entry of information into the Primex Auction System; and
(5) Acceptance and settlement of each trade that is executed through the facilities of the Primex Auction System, or if settlement is to be made through another clearing member, guarantee of the acceptance and settlement of such execution by the clearing member on the regularly scheduled clearing date.
(b) Non-NASD members may access the Application in the name of a Participant by becoming a sponsored Subscriber of the Participant, provided the Participant and sponsored Subscriber have executed the necessary agreements with Nasdaq or its affiliate, and the NASD member Participant assumes the responsibilities set forth in paragraph (a) of this Rule 5012 with respect to any activity conducted by the sponsored Subscriber.
(c) The Application may be made available:
(1) Through Nasdaq-provided network(s) via Primex Auction System Workstation Service;
(2) Through Nasdaq-provided network(s) via an Application Programming Interface (“API”);
(3) Through Nasdaq-provided network(s) via a FIX protocol interface; or
(4) Over the Internet, using Nasdaq-provided user interface. Certain functionality of the Application may be made available through Nasdaq-provided network(s) via Computer to Computer Interface (CTCI).
(d) (1) If a member fails to maintain a clearing relationship as required under paragraph (a)(2), it shall be removed from the Primex Auction System until such time as a clearing arrangement is reestablished.
(2) A member that is not in compliance with its obligations under paragraph (a)(2) of shall be notified when the Association exercises it authority under paragraph (b)(1).
(3) The authority and procedures contained in paragraph (b) do not otherwise limit the Association's authority, contained in other provisions of the Associations rules, to enforce its rules or impose any fitting sanction.
The Application shall accept the following types of orders in Primex Eligible Securities, subject to any conditions or match parameters attached thereto to the extent permitted by the Application and Rule 5014, and other rules applicable to Participants with respect to the entry of orders. Conditions and match parameters, to the extent attached to an order, are never communicated to any Participant:
(1) Market Orders;
(2) Fixed Price Orders, when the specified price is equal to or between the best bid or offer publicly displayed, or is a buy (sell) order priced higher (lower) than the best offer (bid) publicly displayed. Fixed Price Orders to buy (sell) priced below (above) the best bid (offer) publicly displayed will be rejected.
For example: if the best bid and offer publicly displayed in Nasdaq is $20—$20.10, then the Application will accept orders to buy priced at $20.00 and higher, including orders to buy priced higher than the offer of $20.10 (although no execution can take place outside of the NBBO prevailing at the time of execution). An order submitted to buy at $19.95, however, would not be accepted by the Application in this situation and will be returned to the Participant that entered it.
The Application will accept orders that are either round lots, or mixed lots. Odd lot orders will not be accepted.
(1) The Application allows Participants to expose orders to the Primex Crowd. Only the size associated with an order is communicated to the Crowd, and only for the time during which the order is available for execution. Crowd Participants may monitor the availability of orders exposed in an auction through the use of their Watch List.
(2) For each Market Order submitted to the Application, a Participant can specify a maximum exposure time of either 0 (
(3) Fixed Price Orders that are accepted by the Application can only be exposed for an immediate execution, in whole or in part).
Subject to any other rules applicable to Crowd Participants and Primex Auction Market Makers with respect to the entry of orders, any Participant may enter an order with the following condition attached:
Market Orders may be submitted with a condition for Minimum Relative Price Improvement. The Minimum Relative Price Improvement established for an order is the minimum amount of price improvement superior to the best bid or offer publicly displayed (as applicable) that the order must receive before it may be executed against in whole or in part by any interest from the Crowd. This condition must be attached before the order is entered into the Application. Such condition may be expressed only in terms relative to the best bid or offer on the opposite side of the market existing at such time when any Indication, Response, or other order is or becomes available to interact with the order in an Auction, as permitted by the Application and this Rule Series. Neither the existence nor amount of any Minimum Relative Price Improvement condition is displayed, exposed or communicated to any Participant when attached to an order. This condition shall not be available for orders submitted solely for the proprietary account of a Nasdaq market maker or CQS market maker (including Primex Auction Market Makers) and not involving a customer order.
For example: an order to buy 500 shares entered into the Application may contain a condition for Minimum Relative Price Improvement requiring that any Indication or Response (or sell order exposed in an Auction and which is available for a match) provide to that order at least a certain amount (
A Participant registered as a Primex Auction Market Maker for a particular security is entitled, but not required, to enter customer orders with any of the following match parameters as discussed below. These allow the Primex Auction Market Maker to provide liquidity in addition to that which may be provided by the Crowd. The match parameters contained in this paragraph are only available to Participants who are Primex Auction Market Makers, and only for those securities for which they are so registered. Neither the existence nor type of any match parameter associated with an order is displayed, exposed or communicated to any other Participant:
A Participant registered as a Primex Auction Market Maker for a particular security may enter an order with the Two Cent Match parameter.
(A) If there is interest from the Crowd that can satisfy the order, the order entered with the Two Cent Match will be executed against such interest by the Crowd during its exposure, provided that such Crowd interest offers to provide price improvement greater than two cents superior to the best quote publicly displayed in the NBBO at the time such Crowd interest is available.
Because the system will never execute an order at a price outside of the NBBO, any Crowd interest offering an amount of price improvement that would potentially be outside of the NBBO will be executed, if matched with an order, at a price bounded by the NBBO, in effect adjusting the execution price to allow for the maximum amount of price improvement within that NBBO without trading through the NBBO at that time. As a result, it is possible that an order subject to the Two Cent Match parameter may be matched with interest from the Crowd, and not the Primex Auction Market Maker that entered it, notwithstanding the fact that the actual execution price results in price improvement of two cents or less. This can happen, for example, where there is Crowd interest available that is offering three cents of
(B) If there is interest from the Crowd that can satisfy the order but such Crowd interest would only offer price improvement of two cents or less in relation to the best quote publicly available, then this will immediately cause the Application to execute the entire order against the Primex Auction Market Maker that entered it, and not against such Crowd interest, thereby allowing the execution of that order to be retained by the Primex Auction Market Maker. In this situation, the entire order will be executed with that Primex Auction Market Maker at the best price the Crowd interest would have otherwise provided, regardless of the size associated with such Crowd interest.
(C) Any unexecuted balance of the order remaining at the end of its exposure will be executed against the Primex Auction Market Maker. With respect to Market Orders, this execution price will be at the best quote then publicly displayed. With respect to Fixed Price Orders, the execution price will be the price specified in the Fixed Price Order, unless such price is outside the best quote publicly displayed, in which case the execution price will be at the best quote publicly displayed in the NBBO.
(D) A Primex Auction Market Maker may enter customer orders of any size with the Two Cent Match parameter.
(E) A Primex Auction Market Maker that enters a Market Order with the Two Cent Match parameter may elect immediate (“zero seconds”), 15 or 30 second maximum exposure duration for that order. A Fixed Price Order can be exposed only for an immediate “zero second” auction.
A Participant registered as a Primex Auction Market Maker for a particular security may enter an order with a 50% Match parameter.
(A) Orders entered with the 50% Match parameter will be executed against any interest by the Crowd that satisfies the order during its exposure at the price(s) and size of such Crowd interest, for no more than 50% of the order. Any execution with the Crowd will immediately cause the Application to provide the order with an additional execution of like size and price against the Primex Auction Market Maker that entered the order.
(B) Any unexecuted balance of the order remaining at the end of its exposure will be automatically executed against the Primex Auction Market Maker. With respect to Market Orders, this execution price will be at the best quote then publicly displayed. With respect to Fixed Price Orders, the execution price will be at the price specified in the Fixed Price Order, unless such price is outside the best quote publicly displayed, in which case the execution price will be at the best quote publicly displayed.
(C) A Primex Auction Market Maker may enter customer orders of any size with the 50% Match parameter.
(D) A Primex Auction Market Maker that enters a Market Order with the 50% Match parameter may elect immediate (“zero seconds”), 15 or 30 second maximum exposure duration for that order. A Fixed Price Order can be exposed only for an immediate “zero second” auction. For example: The best bid and offer publicly displayed for a security is $20—20.10. A Primex Auction Market Maker for that security enters into the Application a Market Order to buy 2,000 shares for a customer and selects the 50% Match Parameter. The Participant selects an exposure time of 30 seconds. During its exposure, the order elicits the following executions by other Crowd Participants (which could be in the form of Indications, Responses, or contra-side orders to sell): 500 at $20.04, and 200 at $20.05. The Application will execute these transactions, and immediately match each one as they occur by executing an additional 500 and 200 shares, at $20.04 and $20.05, respectively, against the Primex Auction Market Maker entering the order. If there is no other interest from the Crowd at the end of the 30 second exposure period, the Application will cause the remaining balance of 600 shares to be automatically executed against the Primex Auction Market Maker entering the order at the best offer publicly displayed at that time. Assuming the best offer publicly displayed is still $20.10 at this time, this would result in the Primex Auction Market Maker selling the balance of 600 shares to the customer at $20.10.
A Participant registered as a Primex Auction Market Maker for a particular security may enter an order with a Block Facilitation match parameter, provided the order is for at least 10,000 shares. The Primex Auction Market Maker may elect to expose the order in an Auction for a maximum of 0, 15, or 30 seconds. Any Crowd interest that executes against the order during the selected exposure period, up to a maximum of 50% of the order size, will be immediately matched with an execution of like size and price against the entering Participant until the order is fully executed. If any unexecuted portion remains at the end of the exposure period, it will be automatically executed against the entering Participant. With respect to Market Orders, the execution price will be the then existing best offer (for orders to buy) or best bid (for orders to sell) publicly displayed. With respect to a Fixed Price Order, the execution price will be the price specified in the Fixed Price Order, unless such price is outside of the best quote publicly displayed, in which case the execution price will be at the best quote publicly displayed.
For example: The best bid and offer publicly displayed is $20—20.10. A Participant enters into the Application an order to buy a block of 10,000 shares for a customer and selects the Block Facilitation Match Parameter. The Participant selects an exposure time of 15 seconds. During its exposure, the order elicits the following executions by other Crowd Participants (in the form of Indications, Responses, or contra-side orders to sell): 1000 at $20.05, and 2000 at $20.07. The Application will execute these transactions, and immediately match each one as they occur by executing an additional 1000 and 2000 shares, at $20.05 and $20.07, respectively, against the Participant entering the block order. If there is no other interest from the Crowd at the end of the 15 second exposure period, the Application will cause the remaining balance of 4000 shares to be automatically executed against the Participant entering the block order at the best offer publicly displayed at that time. Assuming the best offer publicly displayed is still $20.10 at this time, this would result in the Participant selling the balance of 4000 shares to the customer at $20.10.
A Participant registered as a Primex Auction Market Maker for a particular security may enter a Clean Cross order for the accounts of two separate customers where the order represents both sides of a cross for at least 10,000 shares to be exposed to the Crowd in an immediate, zero second Auction. The two sides will be executed against each other at the midpoint of the best bid and offer publicly displayed unless superior-priced interest within the Application breaks up one or both sides of the cross. In order to break up a side of the cross, there must be Crowd contra-side interest resident within the Application (
All orders submitted to the Application shall be identified as either a Public Order or a Professional Order, as those terms are defined in Rule 5011. This Public or Professional status is not displayed, exposed or communicated to any other Participant in the Application, but is used to determine whether an order is available to interact with the Response or Indication of a Crowd Participant. As indicated in Rule 5018(e), a Participant that responds to orders in an Auction can choose whether its Responses and Indications interact with all orders (both Public and Professional Orders) or just Public Orders. When entering an order, however, a Participant entering an order does not have the ability to select or control whether Public or Professional interest may interact with the order.
(a)(1) All Market Orders submitted to the Application shall include an identifier as to whether any unexecuted balance, after the order is exposed to the Crowd, should be forwarded to the SuperSoes
(2) For securities eligible for the SuperMontage version of the Nasdaq National Market Executions System, all orders submitted to the Application shall include an identifier as to whether any unexecuted balance, after the order is exposed to the Crowd, should be forwarded to SuperMontage, or whether the order should be returned to the entering Participant. Orders forwarded to SuperMontage will be treated as immediate or cancel orders. Routing identifiers are not displayed, exposed or communicated to any other Participant in the Application.
(b) With respect to exchange-listed securities, only Primex Auction Market Makers (which also must be ITS/CAES market makers with respect to these securities, as required by these rules) may elect to have Market Orders in exchange-listed securities routed out to ITS when there is a balance remaining following exposure in the System, provided, however, that customer orders so routed must first be exposed in the Application for at least 15 seconds. In addition, to the extent the best price publicly quoted at that time is available within Nasdaq's CAES system, regardless of whether the same price also is being publicly quoted by another ITS market center, such orders designated for routing to ITS/CAES will be delivered to CAES for execution up to the size publicly quoted by CAES participants and will not be routed out to another market center through ITS.
(a) Participants must properly identify trading interest as a long sale, short sale, or short sale exempt.
(b) The Application will not process trading interest to sell short a Nasdaq-listed security if the execution of such trading interest will violate Rule 3350.
(c) The Application will reject trading interest identified as a short sale or short sale exempt in any exchange-listed security eligible for participation in the InterMarket Trading System.
(a) General—Participants may submit Responses and Indications to the Application, consistent with this Rule Series, for the purpose of interacting with orders in an Auction, as described herein. Responses and Indications are not displayed, exposed or communicated to any Participant, except to the extent they result in an execution with an order. Responses and Indications cannot execute against other Responses or Indications.
(b) Responses—Responses are instructions submitted to the Application by Participants to interact with available orders exposed in an Auction. Responses may be either a Fixed Price Response (
(c) Indications—Indications are instructions, with the characteristics set forth below, submitted to the Application by Participants to interact with orders exposed in an Auction. An Indication may be a Predefined Relative Indication (“PRI”) or a Go-Along Indication.
(A) PRIs can be submitted to the Application for the purpose of automatically responding to an Auction at a point in time when one or more orders becomes available. PRIs have no specific, fixed price, but are expressed at time of entry in terms relative to the best bid or offer publicly displayed at such time when the Application activates the PRI against orders in an Auction. While resident within the Application, PRIs are ranked in relative price/time priority among all other PRIs resident within the Application and any same-side orders currently being exposed in an Auction, as indicated in paragraph (e) of this Rule. Neither the existence nor terms of a PRI are displayed, exposed or communicated to any other Participant while resident in the Application. When activated by the Application, a PRI will match against orders in an Auction at a price equal to the best bid (for PRIs to buy) or offer (for PRIs to sell) publicly displayed at that time in the NBBO, plus or minus (respectively) the relative price term associated with that PRI; provided that such price also satisfies any applicable condition associated with the order(s) in the Auction to which it is responding.
(B) At the time of its original entry, each PRI submitted to the Application must be for at least 100 shares.
(C) The Application will accept a PRI with the following amounts of relative price improvement:
(i) if the NBBO, at the time the PRI is submitted, has a spread equal to three cents or more, the PRI will be accepted if it offers any amount of price improvement between zero and the actual NBBO spread prevailing at that time;
(ii) if the NBBO, at the time the PRI is submitted, has a spread that is less than three cents, the PRI may offer any amount of price improvement between zero and three cents.
(D) Participants may elect to limit their exposure when using PRIs by entering a Per Auction Maximum size for each PRI submitted. The Per Auction Maximum represents the maximum share amount of a PRI available for a single Auction. It cannot be greater than the size of the PRI, but is subject to the same minimum values applicable to the original entry of a PRI with that relative price term. Once the Per Auction Maximum, if any, for a PRI is exhausted, the Participant will have 15 seconds to withdraw the PRI, during which time no further executions against that PRI will
(E) Participants may select a maximum residency period of one (1) or five (5) days, during which time the PRI remains resident within the Application unless fully executed or withdrawn. The Application will automatically withdraw any PRIs that remain at the end of the applicable residency period.
(A) A Go-Along Indication can be submitted to the Application for the purpose of automatically responding in an Auction at a point in time when one or more orders becomes available in an Auction and there has been at least one other contemporaneous Crowd execution within the Application at the NBBO; provided there are no PRIs available or orders being exposed in an Auction (executions resulting from a Primex Auction Market Maker Guarantee do not trigger Go-Along Indications). Go-Along Indications have no specific, fixed price when entered, but will match against orders at a price equal to the best bid (for Go-Along Indications to buy) or best offer (for Go-Along Indications to sell) that exists at such time the Go-Along Indication is activated. While resident within the Application, Go-Along Indications are not displayed, exposed or communicated to any other Participant.
(B) At the time of its original entry, each Go-Along Indication submitted to the Application must be for at least 10,000 shares.
(C) Participants may select a maximum residency period of one (1) or five (5) days, during which time the Go-Along Indication remains resident within the Application unless fully executed or withdrawn. The Application will automatically withdraw any Go-Along Indications that remain at the end of the applicable residency period.
(d) Executions Bounded by the NBBO—The Application will never execute an order outside of the NBBO prevailing at the time of execution. Indications such as PRIs that potentially would offer an amount of price improvement that could result in an execution outside of the NBBO will be priced at the NBBO if matched with an order, in effect providing the maximum amount of price improvement permissible within the NBBO at that time.
(e) Relative Priority Of Predefined Relative Indications and Orders—(1) While resident within the Application, Predefined Relative Indications are ranked in relative price/time priority while they await activation against incoming orders notwithstanding that PRIs have no specified, fixed price associated with them. For example, among resident PRIs for the same security on the same side of the market, PRIs offering greater relative price improvement are ranked ahead of PRIs offering less relative price improvement. PRIs offering the same relative amount of price improvement are ranked by time of entry (or the time the Indication was restored after exhausting its Per Auction Maximum).
(2) Market Orders being exposed within the Application also are ranked in relative price/time priority during the life of their exposure, notwithstanding that Market Orders have no specified, fixed price associated with them. For example, among Market Orders in the same security being exposed on the same side of the market, those orders not seeking any relative price improvement are ranked ahead of orders seeking some relative amount of Minimum Relative Price Improvement. Orders seeking a greater relative amount of Minimum Relative Price Improvement are ranked behind orders seeking a lesser relative amount of Minimum Relative Price Improvement. Orders seeking the same relative amount of price improvement are ranked by time of entry.
(3) Among and between Indications and orders on the same side of the market, the relative price/time priorities for each are integrated, based on their respective ranking relative to the best bid and offer publicly displayed. The Application recalculates and maintains these relative priorities whenever there is a change in the best bid or offer prices publicly displayed in the NBBO. Market Orders that are matched with other Market Orders being auctioned are executed at the midpoint of the best bid and offer publicly displayed, provided that such price satisfies any condition for Minimum Relative Price Improvement associated with each order.
(f) Responding to All Orders or Public Orders Only—All Responses and Indications shall include an identifier as to whether it may interact with either: (1) all available orders (both Public Orders and Professional Orders); or (2) Public Orders only. Such identifier is not displayed, exposed or communicated to any Participant at any time, but is used by the Application for determining the universe of orders with which the Response or Indication may interact.
(a) There are two levels of participation in the Application: Crowd Participant and Primex Auction Market Maker. Becoming a Participant in the Application automatically entitles the Participant to be a Crowd Participant for any security, allowing participation consistent with this Rule 5019. A Crowd Participant may also choose to register as a Primex Auction Market Maker, but only on a security-by-security basis, as set forth in Rule 5020, and only consistent with the requirements for participation under that Rule.
(b) Unless otherwise specified, a Crowd Participant may enter orders, Indications, and Responses in any Primex Eligible Security at any time, for its own account or for the account of a customer. Crowd Participants have no mandatory obligation to submit to the Application any order at any time.
(a) A Participant may register as a Primex Auction Market Maker in one or more Primex Eligible Securities, and may maintain such registration while in compliance with the requirements of this Rule. Unless otherwise specified, a Primex Auction Market Maker is automatically subject to the same rights and obligations of Crowd Participants pursuant to Rule 5019 with respect to customer orders in any and all Primex Eligible Securities. In addition, a Primex Auction Market Maker is entitled, but not obligated, to use either of the following features of the Application when submitting customer orders, but only with respect to those securities in which it is currently registered as a Primex Auction Market Maker:
(1) A Primex Auction Market Maker, for securities in which it is registered as such, may submit customer orders to the Application with any of the available match parameters that enable the Primex Auction Market Maker to exercise certain matching rights facilitated by the Application, as set forth in Rule 5014(b). When associated with an order, these match parameters are not displayed, exposed or communicated to any other Participant; or
(2) A Primex Auction Market Maker, for securities in which it is registered as such, may submit customer orders to the Application with a Market Maker Guarantee enabling the Primex Auction Market Maker to guarantee an execution within the Application where such
(i) Public customer orders of any size are eligible for the Market Maker Guarantee. The Application will facilitate the Market Maker Guarantee by automatically executing any unexecuted balance of the order against the Primex Auction Market Maker that submits the order, after the Auction exposure period for the order has expired.
(ii) The Market Maker Guarantee is automatically provided at a price equal to the best publicly quoted offer price (for orders to buy) or best publicly quoted bid price (for orders to sell) existing for the security at the time when such exposure period for the order has expired (including “zero second” auctions), for any amount of shares established by the Primex Auction Market Maker for the order.
(b) With respect to each security in which a Participant is registered as a Primex Auction Market Maker, the Participant shall:
(1) If the security is a Nasdaq-listed security, be registered as a Nasdaq market maker in such security (or become so registered), and at all times comply with all applicable NASD rules and interpretations relating to Nasdaq market makers, including the requirement to enter and maintain two-sided quotations in Nasdaq for such security, subject to the excused withdrawal procedures set forth in Rule 4619;
(2) if the security is an ITS/CAES eligible security, be registered as an ITS/CAES Market Maker (or become so registered) in such security, and at all times comply with all applicable NASD rules and interpretations relating to ITS/CAES Market Makers, including the requirement to enter and maintain two-sided quotations in CQS for such security, subject to the excused withdrawal procedures set forth in Rule 6350;
(3) not attach a condition for Minimum Relative Price Improvement to any order submitted to the Application solely for its own principal account and not involving a customer order.
(a) After facilitating an execution, the Application will send an execution report to all Participants involved as soon as practicable. The execution report will indicate the details of the transaction, and contain the identity of the contra-party.
(b) Matches within the Application are executed and reported through Nasdaq systems for public tape reporting and forwarding to NSCC for clearing, where necessary. Participants (or their clearing brokers) are the parties responsible for the clearance and settlement of all trades executed through the Application. Once a transaction is executed, Participants do not have the ability within the Application to modify or reallocate any portion of the execution to a clearing broker other than the clearing broker that the Application associates with the transaction at the time of execution. Neither the NASD (and its affiliates) nor any operator or administrator of the Primex Auction System shall be directly or indirectly a party to any transaction entered into, matched, or otherwise effected through the Application.
(a) Credit Limits—The Application shall allow a Participant's Firm Administrator to establish Credit Limits for each of its associated Subscribers, including sponsored Subscribers, on an individual Subscriber basis. The limits are established as a dollar amount of aggregated purchases or sales which, when reached, causes the Application to: (1) Inhibit any future executions or the entry of future interest for that Subscriber; (2) cancel any orders and withdraw any Indications resident within the Application for that Subscriber; and (3) send a notice to that Subscriber, its Firm Administrator, and the Nasdaq Supervisor. Credit Limits may be monitored and modified by the Firm Administrator on a real-time basis directly through the Application.
(b) Clearing Limits—The Application shall allow a Participant's clearing broker to establish Clearing Limits within the Application for the Participant on a firm-wide basis. The limits are established as a dollar amount of both purchases and sales (calculated separately, and not netted) of all Subscribers, collectively for a Participant, effected within the Application through or in the name of that Participant. When the Clearing Limits for a Participant are reached, the Application will: (1) Inhibit any future executions for all Subscribers associated with that Participant; (2) cancel any orders and withdraw any Indications resident within the Application for all Subscribers associated with that Participant; and (3) send a notice to that Participant's Firm Administrator, the Nasdaq Supervisor, and to the clearing broker for that Participant provided that the clearing broker also is a Participant. Clearing Limits for a Participant may be monitored on a real-time basis by the Participant's Firm Administrator and can be established, monitored, and modified by the Firm Administrator of the Participant's clearing broker, provided the clearing broker also is a Participant. If the clearing broker is not a Participant in the Application, then the Nasdaq Supervisor will notify the clearing broker that the Clearing Limits have been reached as soon as practicable. Clearing Limits also can be established and modified by the Nasdaq Supervisor on behalf of the clearing broker.
(a) The Application is available for executing securities transactions during regular Nasdaq trading hours whenever there is a free and open quote (
(b) Nasdaq may permit certain functionality of the Application to be available outside of the time period during which securities transactions may be effected through the Application, including but not limited to, the monitoring, entering, canceling, withdrawing, or modifying resident Indications, Credit Limits, or Clearing Limits.
(a) Neither Nasdaq, the NASD (including their affiliates), Primex Trading N.A., L.L.C. (including its affiliates) nor any other operator, licensor, or administrator (including their affiliates) of the Nasdaq Application of the Primex Auction System shall have any liability for any loss, damages, claim or expense arising from or occasioned by any inaccuracy, error or delay in, or omission of or from: (1) the Nasdaq Application; or (2) the collection, processing, reporting or dissemination of any information derived from the Nasdaq Application, resulting either from any act or omission by Nasdaq or any affiliate, or any operator, licensor, or administrator of the Nasdaq Application or from any act, condition or cause beyond the reasonable control of Nasdaq or any affiliate, operator, licensor or administrator of the Nasdaq Application, including, but not limited to, flood, extraordinary weather
(b) Neither Nasdaq, the NASD (including their affiliates), Primex Trading N.A., L.L.C. (including its affiliates) nor any other operator, licensor, or administrator (including their affiliates) of the Nasdaq Application of the Primex Auction System makes any express or implied warranties or conditions to Participants or their associated Subscribers (including sponsored Subscribers) as to results that any person or party may obtain from the Nasdaq Application for trading or for any other purpose, and all warranties of merchantability or fitness for a particular purpose or use, title, and non-infringement with respect to the Nasdaq Application are hereby disclaimed.]
(1)-(7) (No change).
(8) If a member simultaneously is a Registered Reporting Nasdaq Market Maker and a Registered Reporting ADF Market Maker, and has the trade reporting obligation pursuant to paragraphs (1), (2), (4), (5), (6), or (7), the member can report the trade using either ACT or TRACS, unless the trade is executed using ACES[;]
The following charges shall apply to the use of the Nasdaq Application of the Primex Auction System:
Order entry: No fee.
Auction Response (per share, per execution).* $.003.
50 Percent Match: No fee.
Two-Cent Match (per share, per retained order—$2.50 Maximum). ** $.0025
Each order executed: *** 1/3 of transaction fee.
All monthly logon fees for the period of August 2002 through November 2002 are waived for those Primex Auction System participants that, in connection with their participation in the Primex Auction System during such period, were customers of the Brass Service Bureau and Order Management System.]
[*This fee applies to both Indications and “real-time” Responses. When two orders match directly, a fee is charged to the party that entered the second order.
**This fee is charged in the event a PAMM attaches its matching right to an order, and the crowd offers two cents or less price improvement to that order.
***Paid to a PAMM when it enters an order that interacts with crowd interest in the system. Revenue sharing applies only to orders in those securities in which the firm is registered as a PAMM. The revenue sharing amounts will be paid on a monthly basis.]
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
To streamline the number of systems it offers for trading Nasdaq and listed securities, Nasdaq is terminating its offering of the Primex trading system as of the close of business on January 16, 2004. Beginning on January 19, 2004, members will no longer be able to use the System. Nasdaq disseminated a notice of this decision on December 31, 2003.
Nasdaq believes that the proposed rule change, as amended, is consistent with the provisions of Section 15A of the Act,
Nasdaq does not believe that the proposed rule change, as amended, will result in any burden on competition.
Written comments were neither solicited nor received.
The foregoing rule change has been filed by the NASD as “non-controversial” pursuant to Section 19(b)(3)(A) of the Act
The Commission hereby waives the thirty-day operative waiting period. The Commission believes that the waiver would permit Nasdaq to terminate the System promptly, and would not significantly affect the protection of investors because a notice of the termination was issued on December 31, 2003.
At any time within sixty days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change 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.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to allow Electronic Communications Networks (“ECNs”) voluntarily participating in the Nasdaq National Market Execution System (“NNMS” or “SuperMontage”) to post locking or crossing bids, or locking or crossing offers, in other display venues for Nasdaq securities operated by self-regulatory organizations (“SROs”). Nasdaq will implement the proposed rule change immediately.
Below is the text of the proposed rule change. Proposed new language is
(a) The Association may provide a means to permit alternative trading systems (“ATSs”), as such term is defined in Regulation ATS, and electronic communications networks (“ECNs”), as such term is defined in SEC Rule 11Ac1-1(a)(8),
(1) to comply with SEC Rule 301(b)(3);
(2) to comply with the terms of the ECN display alternative provided for in SEC Rule 11Ac1-1(c)(5)(ii)(A) and (B) (“ECN display alternatives”); or
(3) to provide orders to Nasdaq voluntarily.
In providing any such means, the Association shall establish a mechanism that permits the ATS or ECN to display the best prices and sizes of orders entered into the ATS or ECN by Nasdaq market makers (and other subscribers of the ATS or ECN, if the ECN or ATS so chooses or is required by SEC Rule 301(b)(3) to display a subscriber's order in Nasdaq), and allows any NASD member the electronic ability to effect a transaction with such priced orders that is equivalent to the ability to effect a transaction with a Nasdaq market maker quotation in Nasdaq operated systems.
(b) An ATS or ECN that seeks to utilize the Nasdaq-provided means to comply with SEC Rule 301(b)(3), the ECN display alternatives, or to provide orders to Nasdaq voluntarily shall:
(1) demonstrate to the Association that that it is in compliance with Regulation ATS or it qualifies as an ECN meeting the definition in the SEC Rule;
(2) be registered as a NASD member;
(3) enter into and comply with the terms of a Nasdaq Workstation Subscriber Agreement, as amended for ATSs and ECNs;
(4) agree to provide for Nasdaq's dissemination in the quotation data made available to quotation vendors the prices and sizes of Nasdaq market maker orders (and orders from other subscribers of the ATS or ECN, if the ATS or ECN so chooses or is required by SEC Rule 301(b)(3) to display a subscriber's order in Nasdaq), at the highest buy price and the lowest sell price for each Nasdaq security entered in and widely disseminated by the ATS or ECN, and prior to entering such prices and sizes, register with Nasdaq Market Operations as an ATS or ECN;
(5) provide an automated execution or, if the price is no longer available, an automated rejection of any order routed to the ATS or ECN through the Nasdaq-provided display alternative.
(6) not charge to broker-dealers that access the ATS or ECN through Nasdaq any fee that is inconsistent with the requirements of SEC Rule 301(b)(4).
(c) When a NASD member attempts to electronically access through a Nasdaq-provided system an ATS or ECN-displayed order by sending an order that is larger than the ATS's or ECN's Nasdaq-displayed size and the ATS or ECN is displaying the order in Nasdaq on a reserved size basis, the NASD member that operates the ATS or ECN shall execute such Nasdaq-delivered order:
(1) up to the size of the Nasdaq-delivered order, if the ATS or ECN order (including the reserved size and displayed portions) is the same size or larger than the Nasdaq-delivered order; or
(2) up to the size of the ATS or ECN order (including the reserved size and displayed portions), if the Nasdaq-delivered order is the same size or larger than the ATS or ECN order (including the reserved size and displayed portions).
No ATS or ECN operating in Nasdaq pursuant to this rule is permitted to provide a reserved-size function unless the size of the order displayed in Nasdaq is 100 shares or greater. For purposes of this rule, the term “reserved size” shall mean that a customer entering an order into an ATS or ECN has authorized the ATS or ECN to display publicly part of the full size of the customer's order with the remainder held in reserve on an undisplayed basis to be displayed in whole or in part as the displayed part is executed.
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
NASD Rule 4623 requires ECNs quoting a security in Nasdaq to provide to Nasdaq their best-priced buy and sell prices in that security for dissemination to data vendors. This obligation creates issues for ECNs when those best prices would lock or cross either the inside bid or inside offer then being displayed in Nasdaq. In that situation, an ECN's re-entry of the locking or crossing quote/order subjects it to special SuperMontage processing that makes the ECN's quote/order eligible for automatic execution to ensure that a locked or crossed market in the Nasdaq system does not occur. Such processing contrasts with NNMS' normal method of interacting with ECNs in which Nasdaq delivers orders to the ECN for execution. The change in order processing to automatic execution from order delivery also impacts access fee and rebate arrangements between the submitting ECN and its subscribers as well as complicating the ECN's ability to avoid dual liability for executions simultaneously taking place in Nasdaq and the ECN's internal systems.
The above combination of the Nasdaq best-price rule requirement and the NNMS system's locked and crossed processing provides a disincentive to non-NNMS ECNs or ATSs to participate in the system and unduly restricts the ability of participating ECNs to manage their most aggressively priced subscriber orders. In response, Nasdaq is proposing a modification to its best-price rule requirement to provide ECNs with a limited exception that gives ECNs the option of posting locking or crossing trading interest (individual bids or offers) in other display trading venues operated by either a national securities association or a national securities exchange.
Nasdaq believes that the proposed rule change is consistent with the provisions of section 15A of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
The foregoing rule change has been filed by Nasdaq as a “non-controversial” rule change pursuant to section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
The Commission, consistent with the protection of investors and the public interest, has determined to waive the 30 day operative date.
At any time within 60 days of the filing of a rule change the Commission may summarily abrogate the rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Comments may also be submitted electronically at the following e-mail address:
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On February 26, 2003, the National Association of Securities Dealers, Inc. (“NASD”), through its subsidiary, the Nasdaq Stock Market, Inc. (“Nasdaq”), filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change, as amended, was published for comment in the
The proposed rule change would amend NASD Rule 4810, concerning procedures for review of Nasdaq listing
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to the NASD
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”)
NASD is proposing to require members to review and, if necessary, update their executive representative (“Representative”) contact information on a quarterly basis. The text of the proposed rule change is below. Proposed new language is in italics.
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.
Under Article IV, section 3 of the NASD By-Laws, members must appoint and certify to NASD one Representative to represent, vote, and act for the member in all affairs of NASD. The Representative must be a member of senior management and a registered principal of the member. In addition, the Representative is required to maintain an Internet electronic e-mail account for communication with NASD and must update firm contact information.
Given the important role of the Representative in representing, voting, and acting for the member, NASD believes that members should review and update the Representative designation and contact information periodically to ensure its accuracy. Accordingly, the proposed rule change would require that each member conduct a review and, if necessary, update its Representative information on a quarterly basis, specifically within 17 business days after the end of each calendar quarter. NASD is examining different methods of reminding members of their need to review and update their Representative information on a quarterly basis, including the possibility of a Web page linked to the act of filing the FOCUS report that would prompt members to update such designation and contact information and/or through e-mail reminders to the firm.
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, as amended.
Comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change, or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Comments may also be submitted electronically at the following e-mail address:
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On November 17, 2003, the Philadelphia Stock Exchange, Inc. (“Phlx” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The purpose of the proposed rule change is to implement the Plan of Demutualization. In connection with the Plan of Demutualization, trading privileges will be separated from corporate ownership of the Phlx and will be made available exclusively through trading permits.
As a result of the demutualization, a total of 50,500 shares of Class A Common Stock (100 shares per Seat) will be issued to existing equitable Seat holders and will represent 100% of the common equity ownership in the Phlx outstanding immediately after the demutualization. In addition, all Members and holders of equity trading permits (“ETPs”) who are affiliated with Member Organizations and are not suspended will be entitled to receive
The Exchange proposes to effect the Plan of Demutualization for a number of reasons, including to expand its sources of capital and revenue; to facilitate its ability to enter into relationships with strategic or financial partners who may be crucial for the Exchange's future development, capital formation and viability; to facilitate the introduction of new products and thus potentially increase transaction volume and Exchange revenues; and to better position itself to react to new opportunities and challenges.
The Exchange represents that, after the effective date of the demutualization, it will continue to be a national securities exchange registered under section 6 of the Act.
Changes to the capital structure of the Phlx, as set forth in Article FOURTH of the proposed Certificate of Incorporation, generally reflect the proposed conversion of the Phlx from a non-stock Delaware corporation to a demutualized Delaware stock corporation.
Pursuant to Article FOURTH of the proposed Certificate of Incorporation, after the Merger, the authorized capital stock of the Phlx will consist of:
• 50,500 shares of Class A Common Stock;
• 949,500 shares of Class B Common Stock, par value $0.01 per share (“Class B Common Stock,” and together with the Class A Common Stock, the “Common Stock”); and
• 100,000 shares of preferred stock, par value $0.01 per share, one of which will be designated as “Series A Preferred Stock.”
Upon consummation of the demutualization, the only capital stock outstanding will be the 50,500 shares of Class A Common Stock and the single share of Series A Preferred Stock. The Exchange proposes to authorize more shares of common stock (in the form of the Class B Common Stock) and preferred stock to allow for a more flexible approach to third-party investments and strategic relationships, which the Exchange believes will be critically important to its survival. The proposed Certificate of Incorporation will allow the Board of Governors to create and issue in the future additional classes or series of preferred stock without stockholder approval. In a separate undertaking, however, the Exchange has agreed to submit any such creation and issuance of additional classes or series of preferred stock to the Commission pursuant to section 19(b) of the Act.
Pursuant to Article FOURTH (b)(i) of the proposed Certificate of Incorporation, the Class A Common Stock and the Class B Common Stock will be identical in all respects and will have equal rights and privileges, except for the right to receive the Contingent Dividend (as defined below). Pursuant to Article FOURTH (b)(vi) of the proposed Certificate of Incorporation, each share of Class A Common Stock will automatically convert into one share of Class B Common Stock on the third anniversary of the closing of the Plan of Demutualization (the “Dividend Termination Date”).
Currently, the existing Certificate of Incorporation provides that the Phlx is “not for profit” and “no capital stock shall ever be issued and no dividend shall ever be paid” by the Phlx. After the demutualization, this restriction on paying dividends will be removed, and the Phlx's stockholders will have all dividend and other distribution rights of a stockholder in a Delaware stock corporation (except as may be limited by the rights any preferred stock may have, once issued).
Section 30-4 of the proposed By-laws, however, will prohibit the payment of dividends from any revenues the Phlx derives from regulatory fines, fees or penalties. The Exchange will apply this limitation to its net income, prospectively only, commencing with the fiscal year in which the Merger occurs.
Pursuant to Article FOURTH (b)(ii) of the proposed Certificate of Incorporation, the Class A Common Stock will carry with it the right to a contingent dividend (the “Contingent Dividend”) payable in cash if a Liquidity Event occurs on or before the Dividend Termination Date. A “Liquidity Event” will be any investment of net cash proceeds in the Phlx's capital or that of one of its subsidiaries, either by means of a public offering or private placement of the common or preferred stock of the Phlx or the common stock or other securities of the subsidiary. The amount payable as the Contingent Dividend will depend, as follows, on the aggregate amount of net cash proceeds received by the Phlx and/or the subsidiary from all Liquidity Events occurring on or before the Dividend Termination Date:
• If the aggregate net cash proceeds will be at least $50 million but less than $100 million, the amount payable as a Contingent Dividend will be $7,500 for each 100 shares of Class A Common Stock ($3,787,500 in the aggregate).
• If the aggregate net cash proceeds will be at least $100 million but less than $150 million, the amount payable as a Contingent Dividend will be $17,500 for each 100 shares of Class A Common Stock then outstanding ($8,837,500 in the aggregate).
• If the aggregate net cash proceeds will be at least $150 million, the amount payable as a Contingent Dividend will be $29,700 for each 100 shares of Class A Common Stock then outstanding ($14,998,500 million in the aggregate).
If no Liquidity Event occurs on or before the Dividend Termination Date, the right to receive the Contingent Dividend will terminate without further action on behalf of the Exchange and the Class A Common Stock will be automatically converted into Class B Common Stock, as indicated above.
Currently, Owners have the right to receive all distributions upon a liquidation of the Exchange, on the basis of their pro-rata interest in the Phlx, except as such right may be limited by certain rights of the holders of FCO participations. After the demutualization, the Phlx Common Stock will have the right to receive all distributions upon a liquidation of the Phlx, subject to the rights of any preferred stock that may be issued in the future and the rights of the holder of the Series A Preferred Stock.
Currently, non-Member Owners do not have voting rights under the Exchange's existing Certificate of Incorporation, By-laws and Rules with respect to any matters relating to the Exchange, with certain very limited exceptions.
The holders of the Class A Common Stock and Class B Common Stock will vote together as a single class on all matters, except that: (i) any amendment, alteration or repeal of any of the provisions of the proposed Certificate of Incorporation that adversely affects the rights, powers or privileges of the Class A Common Stock (but not of the Class B Common Stock) will require the affirmative vote of a majority of the shares of the Class A Common Stock then outstanding, voting separately as a class; and (ii) any amendment, alteration or repeal of any of the provisions of the proposed Certificate of Incorporation that adversely affects the rights, powers or privileges of the Class B Common Stock (but not of the Class A Common Stock) will require the affirmative vote of a majority of the shares of Class B Common Stock then outstanding, voting separately as a class.
In addition, pursuant to Section 22-1 of the proposed By-laws, the By-Laws may be amended by the affirmative vote of a majority of the entire Board of Governors, or by the affirmative vote of the holders of a majority of the shares of common stock then issued and outstanding, at any regular or special meeting of the Board of Governors or the stockholders (as the case may be). Unlike pursuant to Section 22-1 of the existing By-laws, after the demutualization, Members (or Member Organizations) will have no right to vote in relation to By-law amendments or to propose By-law amendments. The Phlx states that such change is consistent with the Exchange's proposed post-demutualization structure as a Delaware stock corporation in accordance with applicable Delaware law.
With respect to management equity awards, Section 6-1 of the proposed By-laws provides that, the Exchange will not at any time adopt any stock incentive or option plan or arrangement, or any other equity based compensation plan or arrangement, for the benefit of its governors or officers that authorizes the issuance of stock, stock options or any other securities exercisable or exchangeable for or convertible into any equity interest in the Exchange representing more than 10% of the Common Stock outstanding at such time.
Article FOURTH (b)(iii)(A) of the proposed Certificate of Incorporation provides that each stockholder will be entitled to one vote for each share of Common Stock held of record on the books of the Phlx, subject to the applicable voting restrictions as described below. In connection with the demutualization, the Exchange proposes to include certain voting limitations as set forth in Article FOURTH (b)(iii)(B) of the proposed Certificate of Incorporation. The limitations will provide that, if any Person (as defined
Notwithstanding the foregoing, a Person, either alone or together with its Related Persons, owning of record or beneficially, whether directly or indirectly, more than 20% of the then outstanding shares of Common Stock will be allowed to exercise voting rights, and give proxies and consents, with respect to those shares exceeding 20%, provided that:
• such Person (and its Related Persons owning any Common Stock) has delivered to the Board of Governors a notice in writing, not less than 45 days (or any shorter period to which the Board of Governors shall expressly consent) before the proposed exercise of its voting rights, of its intention to do so; and
• before the intended exercise, the Board of Governors has adopted an amendment to the By-Laws adding a provision to expressly permit such Person's exercise of voting rights in excess of 20%; and the amendment has been filed with the Commission as a proposed rule change under Section 19(b) of the Act
The Board of Governors will not be permitted to adopt any amendment to the proposed By-laws described in the foregoing paragraph unless the Board of Governors has determined that: (i) the exercise of those voting rights by the Person in question and/or its Related Persons will not impair the Exchange's ability to discharge its responsibilities under the Act and the rules and regulations thereunder and is otherwise in the best interests of the Exchange and its stockholders; (ii) the exercise of those voting rights by that Person and its Related Persons will not impair the Commission's ability to enforce the Act; and (iii) that Person and its relevant Related Persons are not subject to any applicable statutory disqualification. In making those determinations, the Board of Governors may impose on the Person in question and its Related Persons such conditions and restrictions as it may in its sole discretion deem necessary, appropriate or desirable in furtherance of the objectives of the Act and the governance of the Exchange. Under the proposed Certificate of Incorporation, however, in no event will a Person who is a Member of the Exchange, either alone or together with its Related Persons, be permitted to vote shares in excess of 20% of the outstanding Common Stock.
Pursuant to Article FOURTH (b)(v) of the proposed Certificate of Incorporation, no Person, either alone or together with its Related Persons, will be allowed to own, of record or beneficially, directly or indirectly, more than 40% of the then outstanding shares of Common Stock of the Phlx and to the extent any Person (or its Related Persons) purports to own more than 40% of the then outstanding shares of common stock, that Person (and its Related Persons) will not be allowed to exercise any of the rights or privileges incident to the ownership of shares of common stock with respect to the shares exceeding the 40% limit, unless:
• such Person (as well as its Related Persons) has delivered to the Board of Governors a notice in writing, not less than 45 days (or such shorter period to which the Board of Governors expressly consents) before the acquisition of that ownership, of its intention to acquire the ownership; and
• before the intended exercise, the Board of Governors has adopted an amendment to the By-Laws, adding a provision to expressly permit that Person's ownership in excess of 40%, and the amendment has been filed with the Commission as a proposed rule change under Section 19(b) of the Act, which has become effective.
The Board of Governors will not be permitted to adopt any amendment to the proposed By-laws described in the foregoing paragraph unless the Board of Governors has determined that: (i) Such acquisition of such ownership by such Person in question and/or its Related Persons will not impair the Exchange's ability to discharge its responsibilities under the Act and the rules and regulations thereunder and is otherwise in the best interests of the Exchange and its stockholders; (ii) such acquisition of such ownership by such Person and its Related Persons will not impair the Commission's ability to enforce the Act; and (iii) that Person and its relevant Related Persons are not subject to any applicable statutory disqualification. In making those determinations, the Board of Governors may impose on the Person in question and its Related Persons such conditions and restrictions as it may in its sole discretion deem necessary, appropriate or desirable in furtherance of the objectives of the Act and the governance of the Exchange.
Unless the conditions specified above are met, if any Person exceeds the 40% threshold, either alone or together with its Related Persons, the Phlx will have the right, but not the obligation, to purchase from that Person and its Related Persons the shares of Common Stock that exceed the 40% threshold for a price equal to the par value of the shares of Common Stock.
In addition, pursuant to Article FOURTH (b)(v)(B) of the proposed Certificate of Incorporation, no Member, either alone or together with its Related Persons, will be allowed to own, of record or beneficially, directly or indirectly, more than 20% of the then outstanding shares of Common Stock of the Exchange. To the extent that any Member (or its Related Persons) purports to so own more than 20% of the then outstanding shares of Common Stock, that Member (and its Related Persons) will not be allowed to exercise any of the rights or privileges incident to the ownership of shares of Common Stock with respect to the shares exceeding the 20% limit.
If any Member exceeds the 20% threshold, either alone or together with its Related Persons, the Phlx will have the right, but not the obligation, to purchase from that Member and its Related Persons the shares of Common Stock that exceed the 20% threshold for a price equal to the par value of the shares of Common Stock. Also, unlike ownership by non-Members in excess of 40%, the proposed Certificate of Incorporation does not contain a proviso allowing for Members to own shares in excess of 20% with appropriate notification and a By-law amendment sanctioned by the Commission.
In addition, pursuant to Article FOURTH (b)(iv) and (v) of the proposed Certificate of Incorporation, any Person, either alone or together with its Related Persons, that at any time owns (whether by acquisition or by a change in the number of shares outstanding) of record or beneficially, directly or indirectly, 5% or more of the then outstanding shares of Common Stock will be required, immediately upon so owning 5% or more of the then outstanding shares of Common Stock, to give the Board of Governors written notice of that ownership and will be required to update the notice promptly after any ownership change. However, an updated notice will not have to be provided to the Board of Governors in the event of an increase or decrease of less than 1% (of the then outstanding shares of Common Stock) in the ownership percentage so reported (for that purpose, the increase or decrease will be measured cumulatively from the amount shown on the immediately preceding report) unless such increase or decrease of less than 1% results in such Person's owning more than 20% or more than 40% of the shares of Common Stock then outstanding (at a time when such Person so owned less than those percentages) or results in such Person's owning less than 20% or less than 40% of the shares of Common Stock then outstanding (at a time when such Person so owned more than those percentages). These voting and ownership limitations, together with the notification requirements, are intended to establish a system of supervision and control to effectively prevent acquisition of voting power of or assertion of control over the Exchange without the approval of both the Board of Governors and the Commission. In addition, the proposed 20% threshold on member ownership is designed to prevent any Member Organization from dominating the Exchange. These notification requirements will also allow the Exchange to fulfill its reporting obligations to the Commission
Pursuant to Section 29-1 of the proposed By-laws, no stockholder of the Exchange may sell, transfer (by operation of law or otherwise) or otherwise dispose of any shares of Class A Common Stock except in blocks of 100 shares per sale, transfer or disposition. This transfer restriction is intended to ensure that the number of holders of common stock of the Exchange will not exceed the threshold for having to register the Exchange with the Commission under Section 12 of the Act.
In addition, the Phlx states that Article 29 of the proposed By-laws contains other restrictions typical for a Delaware stock corporation to ensure compliance with the Securities Act of 1933 (“Securities Act”),
In addition, Section 29-3 of the proposed By-laws provides that no stockholders, if requested by the Exchange or any underwriter of equity securities of the Exchange, may sell or otherwise transfer or dispose of any shares of capital stock of the Exchange held by such stockholder during the 180-day period following the effective date of a registration statement of the Exchange filed under the Securities Act in respect of that class of capital stock. If requested by the Exchange or any such underwriters, each stockholder will be required to execute an agreement to the foregoing effect. The Exchange may impose stop-transfer instructions with respect to the shares (or securities) subject to the foregoing restriction until the end of said 180-day period.
Article FOURTH of the proposed Certificate of Incorporation will designate one share of preferred stock as the “Series A Preferred Stock.” The Series A Preferred Stock will have the sole power to: (i) Select the On-Floor Governors, and (ii) remove the On-Floor Governors in accordance with specified procedures in connection with the removal of Governors.
As set forth in the Trust Agreement, at the effective time of the Merger, the Exchange will issue the share of Series A Preferred Stock to the Trust. Pursuant to Section 4.1 of the Trust Agreement, the Trustee of the Trust will have to vote the share of Series A Preferred Stock with respect to the designated nominees for election as On-Floor Governors, or the removal of On-Floor Governors, as the case may be, as directed by the vote of the Member Organization Representatives of Member Organizations entitled to vote.
The single share of the Series A Preferred Stock, issued to the Trust governed by the Trust Agreement, is designed to facilitate the exercise by Members and Member Organizations of their rights to fair representation in the
Because the Series A Preferred Stock will be issued only to enable the non-stockholder Member Organizations to vote indirectly for the On-Floor Governors, Article FOURTH (a)(i) of the proposed Certificate of Incorporation will provide that the Series A Preferred Stock will not have the right to receive any dividends.
Pursuant to Article FOURTH (a)(ii) of the proposed Certificate of Incorporation, upon liquidation of the Phlx the holder of the share of Series A Preferred Stock will be entitled to receive an amount equal to the par value of the share of Series A Preferred Stock (or $0.01) held by the holder after the payment of, or provision for, obligations of the Phlx and any preferential amounts payable to holders of any other class or series of outstanding shares of preferred stock.
Article FOURTH (a)(iv) of the proposed Certificate of Incorporation will provide that the Series A Preferred Stock will not be transferable (whether by sale, pledge, operation of law or any other disposition) without the prior written consent of the Board. If the Board determines that it is in the best interests of the Exchange or its stockholders for any holder of the share of Series A Preferred Stock to sell the share to the Exchange or any other person, the holder will be required under Article FOURTH (a)(iii) of the proposed Certificate of Incorporation to effect the sale as directed by the Board.
According to Article SIXTH of the proposed Certificate of Incorporation and Sections 4-1 and 4-4 of the proposed By-laws, the principal management of the Phlx after demutualization will continue to rest with the Board and the Standing Committees of the Exchange. To ensure compliance with the Act in the context of a demutualized Exchange, Article SIXTH of the proposed Certificate of Incorporation will provide that, in managing the business and affairs of the Phlx, the Governors will have to consider applicable requirements for registration as a national securities exchange under Section 6(b) of the Act,
Article SIXTH of the proposed Certificate of Incorporation, together with Section 4 of the proposed By-laws, will set forth the required number and composition of the Board. Pursuant to Section 4-1 of the proposed By-laws, the composition of the Board will be the same as before the demutualization and, as set forth in Section 4-3(b) of the proposed By-laws, will consist initially of the same individuals in office at the time of the demutualization. According to Article SIXTH (a) of the proposed Certificate of Incorporation, the Board will continue to have a total of 22 Governors and be composed as follows:
• the Chairman of the Board, who will be the individual then holding the office of Chief Executive Officer (“CEO”);
• 11 Non-Industry Governors (of whom at least five will have to be public Governors); and
• 10 Industry Governors (of whom five will have to be On-Floor Governors and five will have to be Off-Floor Governors).
The criteria set forth in the Exchange's current By-laws for eligibility of persons to serve as a Governor within each category of Governor will remain the same after demutualization.
According to Section 4-3(a) of the proposed By-laws, the Board will remain classified, with Governors serving staggered three-year terms. Governors (other than the Chairman) may serve for up to two consecutive three-year terms starting from the effective time of the Merger. In order to preserve continuity post-demutualization, Section 4-3(b) of the proposed By-laws will provide that Governors who hold their positions at the effective time of the Merger will continue to hold those positions, in their respective classes, until their original terms expire and that the term limits will not take into consideration any service as Governor before the demutualization but will only apply from and after the effective time of the Merger. The Exchange believes that this provision serves to ensure continuity in the governing body of the Exchange through such a significant corporate event as the demutualization.
According to the Phlx, the Exchange's nomination and election procedures are revised to ensure continuing fair representation for Members and Member Organizations in the context of the demutualized Exchange, while at the same time adapting the Exchange to its proposed status as a demutualized business corporation with stockholders. Generally, the new nomination and election structure of the Exchange will be as follows:
• The Non-Industry Governors, Off-Floor Governors and the Chairman of the Board will continue to be nominated by the Nominating and Elections Committee and will be elected by the holders of the Common Stock at meetings of stockholders.
• Stockholders will be permitted to make independent nominations of Non-Industry and Off-Floor Governors upon written notice of the nominations not less than 90 nor more than 120 days before the first Monday in February of each year (or such other date as the Board may establish). These nominations will be subject to review by the Nominating and Elections Committee.
Member Organizations, as described below, will designate the On-Floor Governors in accordance with the following procedures:
• On-Floor Governors will be nominated by the Nominating and Elections Committee from recommendations made: (i) By members
• Independent nominations by Member Organization Representatives will be valid only if signed by Member Organization Representatives representing no less than 50 votes.
• Member Organizations, through their authorized Member Organization Representative, will vote for designated On-Floor Governors among nominees so selected at the annual meeting of Members and Member Organizations.
• Nominees for Governors receiving the highest numbers of votes for the category of Governor for which they were respectively nominated as candidates will be declared the “Designated Nominees” for those offices. In case of a tie, the Nominating and Elections Committee will make the selection as to who among the tying nominees shall be designated.
• On-Floor Governors will then be elected by the Trust owning the share of Series A Preferred Stock based on the “Designated Nominees” elected by the Member Organization Representatives as described above.
In accordance with Section 3-8 of the proposed By-laws, vacancies (including vacancies created by increases in the size of the Board of Governors) will continue to be filled by the Nominating and Elections Committee, upon approval by a majority of the Governors. With respect to the removal of Governors, Article SIXTH (b) of the proposed Certificate of Incorporation and Sections 3-3 and 4-4 of the proposed By-laws will provide that Governors may be removed only for cause or, under certain circumstances, upon recommendation by a majority of the Board of Governors. In addition, Governors may be removed only by a 66
An On-Floor Governor may be removed at any annual or special meeting. A special meeting for the removal of an On-Floor Governor may be called by the Chairman of the Board of Governors or the Board of Governors or, only in the case of a special meeting of Member Organization Representatives for the purpose of voting on the removal of an On-Floor Governor, by the Member Organization Representatives representing a majority of the then issued and outstanding permits. If such a meeting is proposed to be called by Member Organization Representatives, such Member Organization Representatives must provide the Chairman written notice prior to calling any such meeting stating in reasonable detail the basis for, and the facts and circumstances purported to warrant, such removal of the relevant On-Floor Governor.
No changes will be made in Board committee structure or composition as part of the demutualization process, except as follows:
• pursuant to Sections 10-6 and 10-17 of the proposed By-laws, respectively, at least half of the Admissions Committee and the Foreign Currency Options Committee, respectively, will have to be Members, participants or persons affiliated with Member Organizations or participant organizations;
• pursuant to Sections 10-20 and 10-16 of the proposed By-laws, respectively, at least half of the Options Committee and the Floor Procedure Committee, respectively, will have to be Members or persons affiliated with Member Organizations;
• pursuant to Section 10-6 of the proposed By-laws, the Business Conduct Committee will share with the Admissions Committee jurisdiction over the revocation of permits and foreign currency options participations in connection with disciplinary matters; and
• pursuant to Section 10-7(a) and (b) of the proposed By-laws, certain term limits applicable to members of the Allocations Committees will be eliminated.
The existing Certificate of Incorporation and By-laws do not include any specification as to the composition of the Admissions Committee, Foreign Currency Options Committee, the Options Committee or the Floor Procedure Committee and, therefore, do not require the committees to include any Industry Governors. Accordingly, the Phlx states that the proposed rule change will ensure participation of Industry Governors on each of these committees, thereby allowing Industry Governors to take part in decisions made in vital areas of day-to-day trading operations and membership matters. The elimination of term limits respecting the Allocations Committees is intended to achieve consistency with most other committees, which do not have such limits.
The management structure of the Exchange, including its executive officers, will remain unchanged in the demutualization in accordance with Article V of the proposed By-laws. The CEO position will continue to be a full-time position to be appointed by the Board, and the holder of this position will act as the Board's Chairman. The person acting as CEO at the time of the demutualization will be the only nominee for the position of Chairman of the Board, and will be elected by the votes of the holders of the Common Stock. The existing requirement that the CEO may not be a partner of a Member (or participant) Organization, nor an employee, agent, consultant, officer, director or stockholder of a Member (or participant) Organization will be retained. The CEO will appoint the other officers of the Exchange.
Articles FIFTEENTH and SIXTEENTH of the proposed Certificate of Incorporation and Section 4-18 of the proposed By-laws will include provisions substantially similar to the Article EIGHTEENTH of the existing Certificate of Incorporation, in accordance with Section 145 of the Delaware General Corporation Law. Such provisions eliminate the personal liability of Governors (and other persons mentioned below) for monetary damages for breach of fiduciary duty as a Governor, except for liability:
• for any breach of the Governor's duty of loyalty to the Phlx or its stockholders;
• for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
• under Section 174 of the Delaware General Corporation Law regarding unlawful dividends and stock purchases; or
• for any transaction from which the Governor obtained an improper personal benefit.
The proposed Certificate of Incorporation and By-laws will further permit the Phlx to indemnify to the fullest extent permitted under and in accordance with the laws of the State of Delaware any Governor (or director) or officer of the Phlx, and any person that is or was serving at the request of the Phlx as a Governor, committee member or in-house legal counsel, officer, director (or person in similar position), employee or agent of another corporation or of a partnership (general or limited), limited liability company,
As under the current structure, a Member will continue to be permitted to be associated with more than one Member Organization.
Unlike the current Phlx regime, after demutualization, individual Members will not directly be accorded voting rights. Rather, in regard to the election and removal of On-Floor Governors, Member Organizations will be entitled to exercise voting rights in respect of the permits held by those Members who have designated the Member Organization as their primary affiliation. Specifically, pursuant to proposed Rule 921 and Section 12-8 of the proposed By-laws, each Member Organization will have to register with the Exchange and designate a single individual as its “Member Organization Representative.” The concept of a Member Organization Representative is designed to facilitate the post-demutualization voting process. Permit holders, or Members, themselves will not exercise any voting rights. Instead, voting rights associated with a permit will be exercised by the Member Organization with which the Member is primarily associated and, as noted above, will be exercised by the Member Organization's Member Organization Representative. The Member Organization Representative will be the only person who may exercise the voting rights in respect of the Member Organization in respect of matters on which Member Organizations may vote. Proposed Rule 921 also will provide that a Member Organization Representative will have to accept the designation by filling out a registration documentation required by the Exchange.
Pursuant to proposed Rules 921 and 972, with the exception of certain provisions in proposed Rule 921(c) retaining the existing concept of “inactive nominees” in order to alleviate hardships, failure to qualify a Member Organization Representative at any time will prevent a Member Organization from exercising any rights in connection with the Exchange, including the right to vote for designated On-Floor Governors as described below.
According to proposed Rule 924, Members
After the demutualization, holders of permits will not have any voting rights. Member Organizations will have the right to:
• designate the five On-Floor Governors for election to the Board in accordance with Section 3-12 of the proposed By-laws;
• remove the On-Floor Governors in accordance with Sections 3-2(c) and 3-3 of the proposed By-laws (together with the right to designate the On-Floor Governors, the “Designation Rights”); and
• designate the On-Floor Vice-Chair in a contested election as described below.
Each permit will carry one vote. As discussed above, the vote may be exercised only by the qualified Member Organization Representative of a Member Organization designated by a holder of a permit as its primary affiliation.
The Designation Rights will be exercised in accordance with the following procedure:
• based on input from the membership or others, the Nominating and Elections Committee will propose a slate of qualified On-Floor Governors;
• in addition, the Member Organization Representatives, representing at least 50 permits, will be permitted to propose qualified alternative candidates;
• the Member Organization Representatives, at an annual meeting of Members and Member Organizations, will then elect the designated On-Floor Governors from among the Nominating and Elections Committee's slate and any qualified individuals nominated by Member Organization Representatives in accordance with the nomination procedures.
The winners of this election will then be eligible for designation as On-Floor Governors. In compliance with Delaware corporate law, the designated On-Floor Governors will be formally elected by the Trust that holds the single outstanding share of Series A Preferred Stock in accordance with Article FOURTH (a)(iii) of the proposed Certificate of Incorporation.
With respect to the election of the On-Floor Vice Chairman, Section 4-2 of proposed By-laws will provide that, if there is a contest for the position of On-Floor Vice Chairman of the Board, the On-Floor Vice Chairman of the Board may be selected from the On-Floor Governors by a vote of the Member Organization Representatives, as promptly as possible after the annual meeting of stockholders at a special meeting of Members and Member Organizations called for that purpose.
In order to prevent any group of Members of Member Organizations from dominating elections of the Member Organization Representatives, the proposed By-laws will provide in Section 3-12(c) that if any Member Organization, directly or indirectly, possesses the right to vote more than 20% of the then outstanding permits, that Member Organization will not have any right to vote, or to give any consent or proxy with respect to, any permits exceeding the 20% (“Excess Permits”), and the Excess Permits will not be considered present for the purposes of determining whether a quorum is present at any meeting or vote of the Members or Member Organizations, and will not be entitled to vote in determining the number of permits required for a quorum or to be voted for approval of or to give consent with respect to any matter presented to the Members or the Member Organizations.
Pursuant to Section 3-2 of the proposed By-laws, annual meetings of Members and Member Organizations will be held on the second Monday in March of each year to designate nominees for On-Floor Governors. Except with respect to a special meeting called for the purpose of removing an On-Floor Governor, special meetings of Members or the Member Organization Representatives may be called at any time only by the Chairman of the Board or by a majority of the Board.
At all meetings of Members and Member Organizations, each Member Organization Representative may cast his or her vote in person or by proxy, provided that no action will become effective unless there shall have been voted a majority of the number of permits outstanding at such time, not including any Excess Permits. Each Member Organization Representative may cast the number of votes equal to the number of permits held by Members having designated the Member Organization Representative's Member Organization as its primary affiliation (subject to the voting restrictions described above).
Section 3-11 of the proposed By-laws will provide that notice of any meeting of Members and Member Organizations must be given to each Member Organization Representative entitled to vote at such meeting not less than 10 days nor more than 50 days before the date of the meeting.
The Exchange states that enforcement of any disciplinary action and appeals of any disciplinary action will be conducted in the same manner as before the demutualization.
Under the proposed Plan of Demutualization, access to the Exchange facilities and the right to trade will be conferred by the newly-issued permits rather than by ownership or leasing of Seats of the Exchange. As discussed above, trading of foreign currency options will continue to be allowed through the existing FCO participations, but, following the demutualization, will also be permitted through permits, as will be provided in proposed Rule 908(c)(i).
Proposed Rule 971 will provide that all ETPs and ETP use agreements will terminate with immediate effect as of the close of trading on the day the Merger becomes effective without any further action on the part of any party thereto. Similarly, proposed Rule 971 will also provide that all leases of Seats and all leases and A-B-C agreements with respect to such Seats, will terminate with immediate effect as of the close of trading on the day the Merger becomes effective without any further action on the part of any party thereto. All provisions in the Certificate of Incorporation, By-laws and Rules relating to the transfer or lease of a Seat or A-B-C agreement, and all defined terms related thereto (such as “Lessor” and “Lessee”) will be amended as necessary to reflect that, after the demutualization, these provisions and defined terms will only apply to FCO participations. These provisions will no longer be applicable to permits, because permits (including the Series A-1 Permits) will not constitute property that can be transferred by its holder (except within the same member Organization). Similarly, the provisions relating to ETPs, such as Rule 23, will be deleted.
To provide an orderly transition from Seats to permits, proposed Rule 972 will allow each Member (including, without limitation, each holder of an ETP), inactive nominee and Member Organization holding that status immediately before the effective time of the Merger that, at that time, is not subject to any suspension of that status, to maintain that status. All Members and ETP holders who fulfill the requirements described in the previous sentence will receive Series A-1 Permits immediately upon the demutualization.
Proposed Rule 972 will also provide that existing Member Organizations will maintain their status for a period of 15 days following the Merger. Each Member Organization, however, will have to provide to the Admissions Committee and the Exchange, as applicable, before the end of the 15-day period, the following:
• the security deposit or alternative compliance with proposed Rule 909 (the “security requirement”) (as described below);
• the form to be filed by the Member Organization's qualifying permit holder; and
• the designation of the Member Organization's Member Organization Representative in the form prescribed by the Exchange.
If a Member Organization fails within that period to comply with the security requirement and/or to furnish the form to be filed by the Member Organization's qualifying Member, the Member Organization's status as such will immediately be suspended. If a Member Organization fails to designate a Member Organization Representative, the Member Organization may not exercise any voting rights with respect to any permits held by persons who are associated with the Member Organization.
Immediately after the demutualization, pursuant to Section 12-1 of the proposed By-laws and proposed Rule 908, there will be only one series of permit, called the “Series A-1 Permit,” which will confer upon its holder all the rights and privileges of a Member of the Exchange. An individual will be allowed to hold a Series A-1 Permit if he or she meets the qualification criteria that will be set forth in Article XII of the proposed By-laws and Rules 901 and 908 and/or may be imposed by the Admissions Committee (which criteria the Exchange intends will remain largely the same as
After demutualization, Section 12-1 of the proposed By-laws will empower the Board to:
• authorize the issuance of an unlimited or restricted number of additional permits;
• terminate or eliminate any class or series of permits; and
• create additional classes or series of permits.
The Exchange represents that any of these actions will continue to be subject to Commission review and/or approval. In accordance with Section 12-3 of the proposed By-laws, no person will be allowed to hold more than one permit.
Initially, except to the extent provided in applicable product and/or activity criteria set forth in the proposed Rules, qualifications and other requirements for Members to conduct certain activities (
According to proposed Rule 909, each Member Organization will have to provide to, and maintain security with, the Exchange (or alternative compliance) for the payment of any claims owed to the Exchange, to SCCP, and to Members and/or other Member Organizations. Currently, Section 14-5 of the By-laws provides that the Exchange (through the Admissions Committee) may dispose of any Seat upon written notice if amounts owed to the Exchange exceed a certain threshold amount and have been outstanding for at least one year. This possibility will be eliminated in connection with the elimination of Seats in the demutualization. Accordingly, the Exchange proposes the security requirement to protect itself in the case of non-payment of certain amounts owed. The proposed security requirement will consist of:
(i) excess net capital of at least the amount required by the Exchange, as will be published by the Exchange from time to time;
(ii) an acceptable guaranty by a clearing Member Organization that is acceptable to the Exchange; or
(iii) a deposit with the Exchange in an amount not to exceed $50,000.
The amount of the security for a Member Organization will remain the same regardless of the number of permits issued to affiliates of the Member Organization. If a Member Organization's registration is terminated and no Members remain associated with the Member Organization, the Exchange will be permitted to apply the proceeds of any remaining security to the payment of any amounts owed by or on behalf of the Member Organization to, or claimed by, the Exchange, to SCCP, and to other Member Organizations, and any balance of the security thereafter remaining will be returned to the Member Organization or, in the case of a guaranty, the guaranty will be returned to the guarantor Member Organization.
The proposed By-laws will also provide in Section 12-9(b) that following the demutualization, Members, Member Organizations and holders of FCO participations will have to pledge in writing to abide by the proposed Certificate of Incorporation, the proposed By-laws, the proposed Rules and any other rules and regulations of the Exchange.
Pursuant to proposed Rule 908(e), the holder of a permit will be allowed to terminate the permit at any time upon written notice to the Exchange. The Exchange will be allowed to terminate any individual permit in accordance with the By-laws and Rules of the Exchange only upon:
• the non-payment of any dues, foreign currency options users' fees, fees, fines, penalties, other charges, and/or other monies due and owed the Exchange;
• the insolvency of a Member or Member Organization (or if the Business Conduct Committee has determined the Member or Member Organization to be financially unsafe to continue trading); or
• the Exchange's imposition of a disciplinary sanction.
The terminating permit holder and each Member Organization with which the holder is associated will remain responsible for all obligations of the terminating Member, including, without limitation, all applicable dues, fees, charges, fines, penalties and other obligations arising from the holding or use of a permit before its termination.
Pursuant to proposed Rule 908(f), the Exchange will be able to terminate the entire series of Series A-1 Permits on no less than 60 days' notice to the permit holders.
Section 12-1(b) of the proposed By-laws, as well as proposed Rule 908(h), will provide that, unless the Board resolves otherwise, no permit may be sold, transferred (by operation of law or otherwise), leased or otherwise encumbered by any person to whom such permit is issued by the Exchange. However, proposed Rule 908(h) provides that the existing concept of “inactive nominees” will be retained to alleviate certain administrative hardships for Member Organizations,
Currently, the Board of Phlx has the authority to set fees, dues and other charges
After the demutualization, the Board of the Phlx will continue to have the authority to set Member fees, dues and other charges in its sole discretion in accordance with Section 14-1 of the proposed By-laws. However, seat leases and lease payments (other than with respect to FCO participations) will no longer exist. All other Exchange charges in effect at the time of the demutualization will continue to apply until changed.
In connection with the demutualization, the Exchange proposes to make certain corresponding changes to the defined terms applicable to its By-laws and Rules. These changes, reflected in Section 1-1 of the existing and the proposed By-laws, as well as in Rules 1 through 21 of the existing Rules and 1 through 22 of the proposed Rules, are generally designed to adapt such defined terms to the proposed post-demutualization structure of the Exchange, as described herein.
Certain aspects of the proposed rule change are not directly related to the Plan of Demutualization. According to the Exchange, these changes are principally of a clean-up nature and are intended to delete obsolete provisions that relate mainly to membership, to provide clarity and to avoid confusion following the demutualization.
The Exchange proposes to harmonize the use of the defined terms Member Firm, Member Corporation and Member Organization throughout its By-laws and Rules by eliminating the separate defined terms “Member Firm” (Rule 3 of the existing Rules) and “Member Corporation” (Rule 4 of the existing Rules) and amending the defined term “Member Organization” (Rule 6 of the existing Rules and Rule 3 of the proposed Rules) to include any Member Firm and Member Corporation, as they were previously defined. Wherever such defined terms appear in either the By-laws or the Rules, the Exchange proposes to make the corresponding change to Member Organization. The Exchange believes that these changes eliminate certain definitional inconsistencies.
The Exchange proposes to delete the parts of Article XII of the existing By-laws that relate to “convertible memberships” on the Exchange, together with any references to any classes of memberships that existed in connection with the Exchange's pre-1975 status as an unincorporated entity. No such convertible membership has been outstanding at any time and any transitional rules relating to the Exchange's previous unincorporated status are obviously no longer required.
The Exchange proposes to delete Article XIX of the existing By-laws in its entirety, which relates to certain requirements for fixed rates of commissions for transactions effected on or by the use of the facilities of the Exchange. The Exchange believes these provisions do not comport with Section 6(e) of the Act.
The Exchange proposes to delete Article XXIII of the existing By-laws, relating to Market-Maker Memberships, in its entirety. The Phlx advises that no such Market-Maker Membership has been issued since the 1970s and none is currently outstanding. Following the demutualization, the Exchange is not initially proposing to create a specific permit for market-makers; any rights and privileges required to engage in market making on the Exchange initially will be granted through the proposed Series A-1 Permit. The Exchange also proposes to delete related Rules 456-459. The Phlx advises that these deletions are intended to avoid confusion with respect to these unused membership-related provisions.
The Exchange proposes to delete Article XXVI of the existing By-laws, relating to Exchange options trading through a classification of membership named “Options Membership” in its entirety. The Phlx states that no such Options Membership has at any time been issued and outstanding. Following the demutualization, the Exchange will not initially create a specific permit to trade options on the Exchange; any rights and privileges required to engage in trading options on the Exchange initially will be granted through the proposed Series A-1 Permit. Accordingly, this deletion is also intended to avoid confusion.
The Exchange proposes to delete references to the “Constitution of the Exchange” from the Rules 111, 201A and 960.2, as well as from the Commentary to Rule 803. Where applicable, the references will be either deleted in their entirety or will be replaced by references to the Certificate of Incorporation. The Exchange advises that it has not had a Constitution since its incorporation in 1972 and, since that time, has been governed exclusively by its Certificate of Incorporation and By-laws.
The Exchange proposes to delete references to the Exchange's “President” from the Rules and replace such references with “Chairman of the Board of Governors.” The Exchange indicates that it has not established the position of a President and has no immediate plans to establish such a position after the demutualization.
The Exchange proposes to delete Rule 650 in its entirety, which relates to the mandatory participation of Members in certain programs concerning the testing of the Exchange's system in connection with decimalization. According to the Phlx, such tests have been performed, and, therefore, Rule 650 has become obsolete.
The Commission received one comment letter in response to the
In responding to the Penn Mont Letter, the Exchange noted that the reason for eliminating Members' right to petition with respect to changes to the By-laws is that Delaware law requires that stockholders amend the By-laws.
Regarding the Penn Mont Letter's recommendation that the Phlx adopt the same dual-board structure that was recently approved for the NYSE, the Exchange noted its belief that at this time the governance structure proposed in its filing is consistent with the Act and the structures of other SROs and is appropriate on a going forward basis. The Exchange stated that both the NYSE's governance specifically and the governance structure of SROs in general are important policy issues, separate from the Exchange's immediate plan to demutualize. The Phlx noted that it would be unfair to delay its efforts to demutualize for this reason alone because the Exchange can and should continue to evaluate its governance structure in the future.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The proposed Certificate of Incorporation imposes limitations on direct and indirect changes in control of the Phlx through voting and ownership limitations placed on the Common Stock, and monitors potential changes in control through a notification requirement, once a threshold percentage of ownership of the Common Stock is reached. The Commission believes that the limitations on direct and indirect changes in control of the Phlx are sufficient to enable the Phlx to carry out its self-regulatory responsibilities, and to enable the Commission to fulfill its responsibilities under the Act.
The proposed Certificate of Incorporation provides that, unless approved by the Board and effective under Section 19(b) of the Act, no Person, either alone or together with its Related Persons, has any right to vote, or to give any consent or proxy with respect to, more than 20% of the then outstanding shares of Common Stock (any shares of Common Stock owned in excess of 20% are referred to as “Excess Shares”). In addition, such Excess Shares will be deemed not to be present for the purposes of determining whether a quorum is present at any meeting or vote of the stockholders of the Exchange.
Moreover, no Person (either alone or together with its Related Persons, unless approved by the Board and effective under Section 19(b) of the Act) may own, of record or beneficially, whether directly or indirectly, more than 40% of the then outstanding shares of Common Stock of the Phlx. To the extent that such Person (or its Related Persons) purports to own more than 40% of the then outstanding shares of Common Stock, the Person (and its Related Persons) will not be entitled to exercise any rights and privileges incident to ownership of shares in excess of the 40% limit.
Article FOURTH of the Phlx Certificate of Incorporation will require the Board to approve a By-law amendment to permit any Person, together with its Related Persons, to exercise voting rights with respect to their excess shares or to own more than 40% of the outstanding shares. This amendment to the By-laws would have to be filed with the Commission pursuant to Section 19(b) of the Act. The proposed rule change would present the Commission with an opportunity to determine what additional measures, if any, might be necessary to provide sufficient regulatory jurisdiction over the proposed controlling persons.
The proposed Certificate of Incorporation provides that no Member (either alone or together with its Related Persons) will be allowed to own, of record or beneficially, whether directly or indirectly, more than 20% of the then outstanding shares of Common Stock of the Phlx.
The Commission finds that the limitation on member ownership is consistent with the Act. Today, a member who trades on an exchange can have an ownership interest in the exchange. However, a member's interest could become so large as to cast doubt on whether the exchange can fairly and objectively exercise its self-regulatory responsibilities with respect to that member. A member that also is a controlling shareholder of an exchange might be tempted to exercise that controlling influence by directing the exchange to refrain from diligently surveiling the member's conduct or from punishing any conduct that violates the rules of the exchange or the federal securities laws. An exchange also might be reluctant to surveil and enforce its rules zealously against a member that the exchange relies on as its largest source of capital.
The proposed Certificate of Incorporation requires any Person (either alone or together with its Related Persons) that at any time owns (whether by acquisition or by a change in the number of shares outstanding) of record or beneficially, directly or indirectly, 5% or more of the then outstanding shares of the Common Stock to immediately give the Board of Governors written notice of that ownership and update the notice promptly after an ownership change of a specified percentage.
Section 6(b)(3) of the Act requires that the rules of an exchange assure fair representation of its members in the selection of its directors and administration of its affairs and provide that one or more directors be representative of issuers and investors and not be associated with a member of the exchange, or with a broker or dealer.
Under the proposed Certificate of Incorporation, the Exchange will continue to have a total of 22 Governors and will be composed of 11 Non-Industry Governors (of whom at least five must be Public Governors); 10 Industry Governors (of whom five must be On-Floor Governors and five must be Off-Floor Governors); and the Chairman of the Board, who will be the individual then holding the office of CEO. The Non-Industry Governors, Off-Floor Governors, and the Chairman of the Board will continue to be nominated by the Nominating and Elections Committee and will be elected by the holders of the Common Stock. On-Floor Governors will be nominated by the Nominating and Elections Committee from recommendations made by members of that committee or by any Member, participant, or Member Organization Representative. Also, independent nominations by Member Organization Representatives will be valid if signed by Member Organization Representatives representing no less than 50 votes. Member Organizations, through their authorized Member Organization Representative, will vote for designated On-Floor Governors among nominees selected at the annual meeting of Member and Member Organizations. The nominees for On-Floor Governors who received the highest number of votes will be the Designated Nominees, who will then be elected by the Trust owning the share of Series A Preferred Stock
In addition, pursuant to the proposed By-laws, at least half of the Admissions Committee and the Foreign Currency Options Committee will have to be Members, participants or persons affiliated with Member Organizations and at least half of the Options Committee and the Floor Procedure Committee will have to be Members or persons affiliated with Member Organizations. Further, the proposed By-laws require that the Business Conduct Committee share jurisdiction over the revocation of permits and foreign currency options participations in connection with disciplinary matters with the Admissions Committee. The Commission finds that the selection of the five On-Floor Governors out of a total of 22 Governors of the Phlx Board and the manner in which such Governors will be nominated and elected, together with the representation of members on key committees, satisfies the fair representation requirements in Section 6(b)(3) of the Act.
The Commission notes that the proposal does not require that holders of foreign currency options (“FCO”) participations expressly be represented on the committees or on the Board of Governors, although representation on various committees and on the Board as On-Floor Governors is open to them. According to the Phlx, members holding solely FCO participations represent a
The Commission also notes that the proposed Certificate of Incorporation expressly requires the Governors, in managing the business and affairs of the Phlx, to consider applicable requirements for registration as a national securities exchange under Section 6(b) of the Act, including the requirements that the rules of the Phlx be designed to protect investors and the public interest and the Phlx shall be so organized and have the capacity to carry
The Penn Mont Letter, the sole comment letter received by the Commission on the proposal, pointed to the Commission's recent approval of a dual-board governance structure for the NYSE
Finally, the Penn Mont Letter stated that the Plan of Demutualization is flawed because members no longer will have the ability to propose independent rulemaking based on a vote of the membership. The Commission believes that the Phlx's response to this comment is persuasive, namely, that Delaware law requires that stockholders amend the By-laws. Moreover, as the Exchange points out, Members will retain a voice in Exchange rulemaking through participation on various Board Committees, some of which now will require at least half of the Committees' composition be Members or persons affiliated with Member Organizations.
With the demutualization, the holders of Common Stock will have the dividend and other distribution rights of a stockholder in a Delaware stock corporation (except as may be limited by the rights any preferred stock may have, if any such stock is issued). The proposed By-laws, however, will prohibit the payment of dividends from any revenues received by the Exchange from regulatory fines, fees or penalties.
The Commission finds good cause exists for approving Amendment No. 3 to the proposed rule change prior to the thirtieth day after the amendment is published for comment in the
In the amendment, the Phlx also submitted copies of written comments received from market participants regarding the Plan of Demutualization after the Phlx had filed the proposed rule change with the Commission on November 17, 2003, and copies of the Exchange's responses to those comments.
The Commission believes that acceleration of the amendment is appropriate. The Conversion Amendment was described in the Notice and the filing of its actual rule text presents no new issues.
Interested persons are invited to submit written data, views and arguments concerning Amendment No. 3, including whether the amendment 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:
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 proposed rule change would require SCCP specialists and alternate specialists (“SCCP margin members”) to comply with certain procedures when engaging in short settlement transactions. These procedures would require the review of short settlement transactions by the SCCP Board of Directors or Operations Committee to determine whether additional margin will be required prior to settlement date from SCCP specialists and alternate specialists engaging in these transactions.
In its filing with the Commission, SCCP 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. SCCP 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 implement risk management procedures to protect SCCP from undue credit risk and short settlement risk when a SCCP margin member engages in a short settlement transaction.
SCCP provides margin services to SCCP margin members in accordance with Rule 9 of SCCP's by-laws and procedures and Regulation T of the Board of Governors of the Federal Reserve System. Pursuant to current-Rule 9, SCCP guarantees the cash settlement obligations of the omnibus clearance and settlement account to NSCC.
If a SCCP margin member executes a short settlement transaction, SCCP is obliged by NSCC's rules and procedures to finance the covering transaction until settlement on T+2 or T+3 because the SCCP margin member has already received the proceeds from the opening transaction on T+1 or T+2, respectively.
Currently, Rule 9 provides, in part, that SCCP will provide margin accounts for SCCP margin members that clear and settle their transactions through SCCP's omnibus clearance and settlement account. Pursuant to Rule 9, SCCP may issue margin calls to any SCCP margin member when the margin requirement exceeds the account equity. In addition, Rule 9 provides that SCCP may require adequate assurances or additional margin (in addition to minimum margin thresholds) payable in Federal funds in order to protect SCCP in issues deemed by SCCP to warrant additional protection.
Rule 9 also currently provides that any failure by a SCCP margin member to meet a margin call shall subject such delinquent SCCP margin member to the late margin call payment schedule contained in Rule 9 and to SCCP's Rule 22, which governs disciplinary proceedings and penalties. Moreover, pursuant to SCCP's Rules 9 and 15, SCCP may cease to act for the account of such delinquent SCCP margin member, and SCCP will retain a lien on all such SCCP margin member's accounts and securities therein to satisfy any capital deficiency of such margin member.
SCCP proposes to amend Rule 9 to expressly shift the credit risk and the short settlement risk from short settlement transactions from SCCP to the SCCP margin member. The proposed rule change sets forth procedures that would require a SCCP margin member to notify SCCP on trade date (T) whenever the SCCP margin member executes a short settlement transaction. The purpose of this notification is to put SCCP on notice that a short settlement transaction has been executed, to allow SCCP to verify the SCCP margin member's net capital and net settlement cap, and to allow SCCP to calculate any net settlement obligations to NSCC. The
Under the proposed rule change, a SCCP margin member must obtain approval from the SCCP Board of Directors or Operations Committee to continue carrying any transactions having an aggregate value above the net settlement cap. The SCCP Board of Directors or Operations Committee has the sole discretion to approve whether a margin member may continue to carry any transactions that exceed the net settlement cap. A SCCP margin member may only carry a short settlement transaction with an aggregate value above the net settlement cap until the clearance and settlement of such transaction with NSCC. The SCCP Board of Directors or Operations Committee shall determine, in its sole discretion, whether SCCP will finance the short settlement transaction in excess of the margin member's net settlement cap. If the SCCP Board of Directors or Operations Committee, as the case may be, determines that SCCP will not finance such short settlement transaction, the SCCP margin member shall be required to pay 100 percent of its settlement obligations to SCCP above the net settlement cap. In this manner, SCCP will satisfy its obligations to NSCC for the additional clearing funds caused by a net settlement transaction.
The SCCP margin member shall have until 3 p.m. eastern time on the date following the initial notification (T+2) to provide sufficient funds to cover 100 percent of the settlement obligations above the SCCP margin member's net settlement cap. The net settlement cap related provisions are intended to require any SCCP margin member who executes a short settlement transaction to bear the credit risk from such transaction and to decrease associated risks to SCCP. Finally, the proposed rule change reminds SCCP margin members that SCCP has the authority to initiate a disciplinary proceeding or to cease to act on behalf of such SCCP margin member if sufficient funds are not provided by the T+2 deadline. These provisions currently appear in SCCP Rules 9 and 15.
No other aspect of Rule 9 is being modified. Rule 9 is being specifically interpreted to (i) Require notification of SCCP by the SCCP margin member in the event the SCCP margin member executes a short settlement transaction; (ii) require the SCCP margin member to finance 100 percent of the net settlement obligation in the event SCCP's Board of Directors or Operations Committee, as the case may be, elects not to finance the opening transaction; and (iii) clarify that SCCP is authorized to bring a disciplinary proceeding against the SCCP margin member and to cease to act on behalf of such SCCP margin member if the firm continues to carry the short settlement transaction without providing sufficient capital to cover the margin member's net settlement obligation.
SCCP believes that the proposed rule change should facilitate compliance with SCCP's rules regarding the carrying of securities in margin accounts and Regulation T and is, therefore, consistent with Section 17A(b)(3)(A) of the Act. In particular, SCCP believes that the proposed rule change is consistent with Section 17A(b)(3)(F) of the Act
SCCP does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were either solicited or received.
Within thirty-five days of the date of publication of this notice in the
(a) By order approve the 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.
In accordance with a notice received from the Department of Homeland Security—Federal Emergency Management Agency, effective January 20, 2004, the above numbered declaration is hereby amended to extend the deadline for filing applications for physical damages as a result of this disaster to February 4, 2004.
All other information remains the same,
Professor David Martin will brief on his findings and on his draft report on Friday, February 6, 2004, from 1 p.m. to 3 p.m. Both documents are accessible at
Seating is limited. Persons wishing to attend this meeting must notify the Bureau of Population, Refugees, and Migration at (202) 663-1481 by 5 p.m. (e.s.t.) Tuesday, February 3, 2004 (no exceptions), to arrange for admission (please provide full name and organization). Persons wishing to present oral comments at the open portion of the meeting or to submit written comments for consideration must provide them in writing by 5 p.m. (e.s.t.) February 3, 2004 (again, no exceptions). All comments may be faxed to (202) 663-1002 or to
Office of the Secretary, (OST) DOT.
Notice.
The Department is publishing the following notices regarding the obligation of air carriers to amend their Family Assistance Plans in accordance with section 809 of Vision 100—Century of Aviation Reauthorization Act (Pub. L. 108-176; 117 Stat. 2490, December 12, 2003).
Dayton Lehman, Jr., Deputy Assistant General Counsel, Office of Aviation Enforcement and Proceedings (C-70), 400 7th Street, SW., Washington, DC 20590, (202) 366-9349.
This is to advise certificated air carriers that the Vision 100—Century of Aviation Reauthorization Act (Pub. L. 108-176, 117 Stat. 2490, December 12, 2003) amends 49 U.S.C. 41113(b) to require, among other things, that certificated air carriers submit to the Department of Transportation (Department) and the National Transportation Safety Board (NTSB) additional assurances for their respective plans to address the needs of families of passengers involved in aircraft accidents. The content and filing requirements for the update to the plans applicable to certificated air carriers are set forth in section 809 of Vision 100. A copy of section 809 and an electronic version of this document are available on the World Wide Web at
The additional assurances required to be submitted are described in paragraph (a)(2) of section 809 of Vision 100. In accordance with paragraph (c), certificated air carriers must submit their updated plans to the Department and the NTSB within 90 days of the statute's enactment. Since Vision 100 was signed into law on December 12, 2003, updated plans are due to be filed not later than March 11, 2004. Plans should be submitted to the Department and the NTSB at the following addresses:
Each certificated air carrier should submit its plan in its entirety, that is, the plan as it exists with the new assurances as set forth in Vision 100. We expect each certificated air carrier to give a high priority to the timely preparation and submission of its updated plan. We note that the requirements of section 41113 apply to all certificated air carriers, including those holding cargo-only authority and those operating small aircraft. We also emphasize that, if a carrier chooses to contract with an outside source to act as a point of contact and to provide services covered in the assurances, full responsibility for complying with the provisions of the law nevertheless remains with the carrier.
We would also like to take this opportunity to request, on behalf of the NTSB, that each air carrier provide the NTSB an updated 24-hour telephone number for its operations center for use in the event of an emergency, and that the number be updated with the NTSB in the future as necessary.
Questions concerning contents of the plans may be addressed to Erik Grosof, Office of Transportation Disaster Assistance, NTSB, at (202) 314-6189. Questions concerning the applicability of the requirements of section 41113 to a particular air carrier should be addressed to Dayton Lehman, Jr., Deputy Assistant General Counsel for Aviation Enforcement and Proceedings, DOT, at (202) 366-9342.
Office of the Secretary, (OST), DOT.
Notice.
The Department is publishing the following notices regarding the obligation of foreign air carriers to amend their Family Assistance Plans in accordance with section 809 of Vision 100—Century of Aviation Reauthorization Act (Pub. L. 108-176; 117 Stat. 2490, December 12, 2003).
Dayton Lehman, Jr., Deputy Assistant General Counsel, Office of Aviation Enforcement and Proceedings (C-70), 400 7th Street, SW., Washington, DC 20590, (202) 366-9349.
This is to advise foreign air carriers serving the United States that the Vision 100—Century of Aviation Reauthorization Act (Pub. L. 108-176, 117 Stat. 2490, December 12, 2003) amends 49 U.S.C. 41313(c) to require, among other things, that foreign air carriers submit to the Department of Transportation (Department) and the National Transportation Safety Board (NTSB) additional assurances for their respective plans to address the needs of families of passengers involved in aircraft accidents. The content and filing requirements for the update to the plans applicable to foreign air carriers are set forth in section 809 of Vision 100. A copy of section 809 and an electronic version of this document are available on the World Wide Web at
The additional assurances required to be submitted are described in paragraph (b) of section 809 of Vision 100. In accordance with paragraph (c), foreign air carriers must submit their updated plans to the Department and the NTSB within 90 days of the statute's enactment. Since Vision 100 was signed into law on December 12, 2003, updated plans are due to be filed not later than March 11, 2004. Plans should be submitted to the Department and the NTSB at the following addresses:
We note that the Department has exempted from the requirements of section 41313 those foreign air carriers that currently hold, or may subsequently receive, Departmental authority to conduct operations in foreign air transportation using only small aircraft. (Order 98-1-31, issued February 3, 1998.) For purposes of the exemption, small aircraft are those designed to have a maximum passenger capacity of not more than 60 seats or a maximum payload capacity of not more than 18,000 pounds. Unless a foreign air carrier falls within the above exemption, the requirements of section 41313 apply to all foreign air carriers that currently hold, or may subsequently receive, Departmental authority to conduct operations in foreign air transportation, including those holding only all-cargo authority.
Each foreign air carrier should submit its plan in its entirety, that is, the plan as it exists with the new assurances as set forth in Vision 100. We expect each affected foreign air carrier to give a high priority to the timely preparation and submission of its updated plan. We remind each foreign air carrier that, if it chooses to contract with an outside source to act as a point of contact and to provide services covered in the assurances, full responsibility for complying with the provisions of the law nevertheless remains with the foreign air carrier.
We would also like to take this opportunity to request, on behalf of the NTSB, that each foreign air carrier provide the NTSB an updated 24-hour telephone number for its operations center for use in the event of an emergency, and that the number be updated with the NTSB in the future as necessary.
Questions concerning contents of the plans may be addressed to Erik Grosof, Office of Transportation Disaster Assistance, NTSB, at (202) 314-6189. Questions concerning the applicability of the requirements of section 41313 to a particular foreign air carrier should be addressed to Dayton Lehman, Jr., Deputy Assistant General Counsel for Aviation Enforcement and Proceedings, DOT, at (202) 366-9342.
Maritime Administration, DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before February 26, 2004.
Celia Luck, Maritime Administration, MAR-810, 400 7th Street, SW., Washington, DC 20590. Telephone: (202) 366-3581; fax: (202) 366-6988; or e-mail:
Maritime Administration (MARAD).
Comments are invited on: 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; the accuracy of the agency's estimate of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Request for comments.
This notice announces the publication by NHTSA of its Evaluation Program Plan for Calendar Years 2004-2007. The report describes the agency's ongoing and planned evaluations of its existing Federal Motor Vehicle Safety Standards [49 CFR part 571] and other vehicle-safety, behavioral-safety and consumer programs. It also summarizes the results of completed evaluations. The agency's evaluation program responds to Executive Order 12866, which provides for Government-wide review of existing significant Federal regulations. This notice solicits public review and comment on the evaluation plan. Comments received will be used to improve the plan.
Comments must be received no later than May 26, 2004.
• Web Site:
• Fax: (202) 493-2251.
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
• Federal eRulemaking Portal: Go to
You may call Docket Management at (202) 366-9324 and visit the Docket from 10 a.m. to 5 p.m., Monday through Friday.
Charles J. Kahane, Chief, Evaluation Division, NPO-321, Office of Planning, Evaluation and Budget, National Highway Traffic Safety Administration, Room 5208, 400 Seventh Street, SW., Washington, DC 20590. Telephone: (202) 366-2560. Fax: (202) 366-2559. E-mail:
NHTSA has rigorously evaluated its major programs as a matter of policy since 1970. The evaluation of the effectiveness of the Federal Motor Vehicle Safety Standards (FMVSS) began in 1975. The Government Performance and Results Act of 1993 and Executive Order 12866, “Regulatory Planning and Review,” issued in October 1993 (58 FR 51735), now oblige all Federal agencies to evaluate their existing programs and regulations. Previously, Executive Order 12291, issued in February 1981 (46 FR 13193), also required reviews of existing regulations. Even before 1981, however, NHTSA was a leader among Federal agencies in evaluating the effectiveness of existing regulations and technologies. There are large databases of motor vehicle crashes that can be analyzed to find out what vehicle and behavioral safety programs work best.
This four-year plan presents and discusses the vehicle and behavioral programs, regulations, technologies and related areas NHTSA proposes to evaluate, and it summarizes the findings of past evaluations. Depending on scope, evaluations typically take a year or substantially more, counting initial planning, contracting for support, OMB clearance for surveys, data collection, analysis, internal review, approvals, publication, review of public comments, and the last phase of preparing recommendations for subsequent agency action.
Most of NHTSA's crashworthiness and several crash avoidance standards have been evaluated at least once since 1975. A number of consumer-oriented regulations,
The plan will be periodically updated in response to public and agency needs, with a complete revision scheduled every five years. The most recent plan before this one was published on May 8, 1998 (63 FR 25543).
NHTSA welcomes public review of the evaluation plan and invites the reviewers to comment about the selection, priority, and schedule of the regulations to be evaluated. The agency
Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the Docket number of this document (NHTSA-2004-16932) in your comments.
Your primary comments must not be more than 15 pages long (49 CFR 553.21). However, you may attach additional documents to your primary comments. There is no limit on the length of the attachments.
Please send two paper copies of your comments to Docket Management, submit them electronically, fax them, or use the Federal eRulemaking Portal. The mailing address is U.S. Department of Transportation Docket Management, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590. If you submit your comments electronically, log onto the Dockets Management System Web site at
We also request, but do not require you to send a copy to Charles J. Kahane, Chief, Evaluation Division, NPO-321, National Highway Traffic Safety Administration, Room 5208, 400 Seventh Street, SW., Washington, DC 20590 (alternatively, fax to (202) 366-2559 or e-mail to
If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
If you wish to submit any information under a claim of confidentiality, send three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NCC-01, National Highway Traffic Safety Administration, Room 5219, 400 Seventh Street, SW., Washington, DC 20590. Include a cover letter supplying the information specified in our confidential business information regulation (49 CFR Part 512).
In addition, send two copies from which you have deleted the claimed confidential business information to Docket Management, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590, or submit them electronically.
In our response, we will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under
Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.
You may read the comments by visiting Docket Management in person at Room PL-401, 400 Seventh Street, SW., Washington, DC from 10 a.m. to 5 p.m., Monday through Friday.
You may also see the comments on the Internet by taking the following steps:
A. Go to the Docket Management System (DMS) Web page of the Department of Transportation (
B. On that page, click on “search.”
C. On the next page (
D. On the next page, which contains Docket summary information for the Docket you selected, click on the desired comments. You may also download the comments.
49 U.S.C. 30111, 30168; delegation of authority at 49 CFR 1.50 and 501.8.
On January 5, 2004, Vermont Railway, Inc. (VTR), a Class III rail carrier, filed a notice for a modified certificate of public convenience and necessity under 49 CFR part 1150, subpart C,
The Board's predecessor, the Interstate Commerce Commission (ICC), approved the line for abandonment by Rutland Railway Corp., in
The last time the ICC approved an extension of the lease between Vermont and VTR, it noted that, if VTR were to file for a modified certificate of public convenience and necessity, the parties would no longer need to obtain approval for changes or extensions of their lease.
The rail segment qualifies for a modified certificate of public convenience and necessity.
There is no operating subsidy involved. However, pursuant to the 1990 lease between VTR and Vermont, Vermont is required to pay for the maintenance of certain structures on the line.
This notice will be served on the Association of American Railroads (Car Service Division) as agent for all railroads subscribing to the car-service and car-hire agreement: Association of American Railroads, 50 F Street, NW., Washington, DC 20001; and on the American Short Line and Regional Railroad Association: American Short Line and Regional Railroad Association, 50 F Street, NW., Suite 7020, Washington, DC 20001.
By the Board, David M. Konschnik, Director, Office of Proceedings.
Norfolk Southern Railway Company (NSR) has filed a notice of exemption under 49 CFR part 1152 subpart F—
NSR has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) any overhead traffic can be rerouted over other lines; (3) no formal complaint filed by a user of rail service on the line (or by a State or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Board or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.7 (environmental reports), 49 CFR 1105.8 (historic reports), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
A copy of any petition filed with the Board should be sent to NSR's representative: James R. Paschall, General Attorney, Norfolk Southern Corporation, Three Commercial Place, Norfolk, VA 23510.
If the verified notice contains false or misleading information, the exemption is void
NSR has filed an environmental report which addresses the effects, if any, of the abandonment on the environment and historic resources. SEA will issue an environmental assessment (EA) by January 30, 2004. Interested persons may obtain a copy of the EA by writing to SEA (Room 500, Surface Transportation Board, Washington, DC 20423-0001) or by calling SEA, at (202) 565-1539. (Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.) Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), NSR shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by NSR's filing of a notice of consummation by January 27, 2005, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
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 Alcohol and Tobacco Tax and Trade Bureau within the Department of the Treasury is soliciting comments concerning the Letterhead Applications and Notices Filed by Brewers.
Written comments should be received on or before March 29, 2004 to be assured of consideration.
Direct all written comments to Sandra L. Turner, Alcohol and Tobacco Tax and Trade Bureau, 650 Massachusetts Avenue, NW., Room 200 E, Washington DC 20226; telephone (202) 927-8210.
Requests for additional information or copies of the form(s) and instructions should be directed Sandra L. Turner, Alcohol and Tobacco Tax and Trade Bureau, 650 Massachusetts Avenue, NW., Room 200 E, Washington, DC 20226; telephone (202) 927-8210.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
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 Alcohol and Tobacco Tax and Trade Bureau within the Department of the Treasury is soliciting comments concerning the Principal Place of Business on Beer Labels.
Written comments should be received on or before March 29, 2004 to be assured of consideration.
Direct all written comments to Sandra L. Turner, Alcohol and Tobacco Tax and Trade Bureau, 650 Massachusetts Avenue, NW., Room 200 E, Washington DC 20226; telephone (202) 927-8210.
Requests for additional information or copies of the form(s) and instructions should be directed to Sandra L. Turner, Alcohol and Tobacco Tax and Trade Bureau, 650 Massachusetts Avenue, NW., Room 200 E, Washington, DC 20226; telephone (202) 927-8210.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Office of the Comptroller of the Currency (OCC), Treasury; Board of Governors of the Federal Reserve System (Board); and Federal Deposit Insurance Corporation (FDIC).
Notice of information collection to be submitted to OMB for review and approval under the Paperwork Reduction Act of 1995.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the OCC, the Board, and the FDIC (the “agencies”) may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. On November 8, 2002, the agencies requested public comment for 60 days on proposed
Comments must be submitted on or before February 26, 2004.
Interested parties are invited to submit written comments to any or all of the agencies. All comments, which should refer to the OMB control number(s), will be shared among the agencies.
A copy of the comments may also be submitted to the OMB desk officer for the agencies: Joseph F. Lackey, Jr., Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503 or electronic mail to
For further information about the revisions discussed in this notice, please contact any of the agency clearance officers whose names appear below. In addition, sample copies of Call Report forms can be obtained at the FFIEC's Web site (
Request for OMB approval to extend, with revision, the following currently approved collections of information:
For OCC:
For Board:
For FDIC:
The estimated time per response for the Call Report is an average, which varies by agency because of differences in the composition of the banks under each agency's supervision (
These information collections are mandatory: 12 U.S.C. 161 (for national banks), 12 U.S.C. 324 (for state member banks), and 12 U.S.C. 1817 (for insured state nonmember commercial and savings banks, and for all banks for deposit information). Except for selected items, these information collections are not given confidential treatment.
Banks file Call Reports with the agencies each quarter for the agencies' use in monitoring the condition, performance, and risk profile of reporting banks and the industry as a whole. In addition, Call Reports provide the most current statistical data available for identifying areas of focus for both on-site and off-site examinations, for evaluating bank corporate applications such as mergers, and for monetary and other public policy purposes. Call Reports are also used to calculate all banks' deposit insurance and Financing Corporation assessments and national banks' semiannual assessment fees.
On November 8, 2002, the OCC, the Board, and the FDIC jointly published a
After considering the comments the agencies received on the November 2002 proposal, the FFIEC and the agencies adopted some of the proposed revisions after making certain modifications to them, submitted them to OMB for review with a request for public comment on them (68 FR 10310), and received OMB approval to implement them as of March 31, 2003. The agencies' notice also explained that the FFIEC and the agencies were continuing to evaluate three other elements of their November 2002 proposal:
(1) A reduction from 45 to 30 days in the Call Report filing period for banks with more than one foreign office,
(2) The creation of a supplement to the Call Report that would enable the agencies to collect a limited amount of data from certain banks in the event of an immediate and critical need for specific information, and
(3) The establishment of edit criteria that would have to be met in order for a bank's Call Report data to be accepted beginning upon implementation of the agencies' new business model for collecting and validating Call Reports in 2004.
The FFIEC and the agencies have concluded their evaluations of these three elements of their November 2002 proposal and have decided to proceed with them in modified form as more fully discussed below. In addition, in preparation for the implementation of the agencies' new Call Report business model, banks will begin to provide contact information for the authorized officer who signs their Call Report as part of their submission of the report. The contact information would be afforded confidential treatment and includes the officer's name, title, phone number, e-mail address, and fax number. This revision would take effect with the Call Report for March 31, 2004.
In response to their November 8, 2002, notice, the agencies received 13 comment letters, eight from banks and banking organizations, three from bankers' associations, one from a governmental entity, and one from a trade group outside the banking industry. The FFIEC and the agencies have considered the comments received from these 13 respondents as they relate to the revisions that are the subject of this notice.
Commenters suggested alternatives to the agencies' proposal to reduce the filing period for banks with multiple foreign offices to 30 days beginning June 30, 2003. One alternative would be for the agencies to implement a staggered submission process for banks with multiple foreign offices under which these banks would file a preliminary balance sheet, income statement, and domestic office deposit data within 30 days followed by complete Call Report data within 45 days. Another alternative would be for the agencies to adopt a three-year phased-in approach like the Securities and Exchange Commission (SEC) did in August 2002 when it shortened the filing period for larger public companies' quarterly reports on Form 10-Q from 45 to 35 days. Finally, commenters suggested that if the filing period for the Call Report data is reduced, the filing periods for other regulatory reports that banking organizations submit to the agencies should be lengthened.
In proposing to reduce the filing period for the approximately 40 banks with more than one foreign office, a group that includes the largest banks in the industry, the agencies noted that more timely receipt of Call Report data from all institutions would enable the agencies to make these data, and the agencies' analyses thereof, available to bankers and the marketplace earlier than at present. The agencies' proposal also cited the SEC's August 2002 decision to accelerate the filing period for quarterly and annual reports required from larger public companies under the federal securities laws as evidence of the importance of earlier public availability of information to decision-making. At the same time, the FFIEC and the agencies understand the concerns expressed by commenters about the impact that an almost immediate one-third reduction in the filing period would have on the systems and staffs of affected banks. The FFIEC and the agencies have considered these concerns and the alternatives suggested by commenters as well as the Board's March 2003 decision concerning the shortening of the filing deadline for the bank holding company report on form FR Y-9C (68 FR 15725). As a result, the FFIEC and the agencies have modified their original proposal and, similar to the actions by the SEC and Board, are adopting a phased-in approach for the Call Report. For banks with more than one foreign office, the filing deadline will be reduced to 40 calendar days from 45 calendar days starting with the June 2004 Call Report and to 35 calendar days starting with the June 2005 Call Report. These reduced filing periods will apply to each quarterly Call Report, including the year-end report. For all other banks, the Call Report filing deadline will remain 30 calendar days.
The changes in Call Report requirements that OMB approved for implementation as of March 31, 2003, included authorization for the FDIC to contact not more than 20 banks with more than one foreign office on or about each May 1 and November 1 if their March 31 and September 30 Call Reports had not been received in order to obtain certain deposit data needed to estimate insured deposits. As approved by OMB, the FDIC is permitted to
One commenter questioned whether the agencies' proposed addition of a supplement to the Call Report had satisfied applicable Administrative Procedure Act requirements because the proposal lacked sufficient specificity, made no provision for confidential treatment of the data that would be collected, and the burden estimate was without foundation. Rather than creating a Call Report supplement, this commenter recommended that the agencies should rely on the existing emergency provisions of the Paperwork Reduction Act should they be confronted with an
Two other commenters sought clarification of the frequency with which the Call Report supplement would be collected and magnitude of the data that would be requested because of the cost and burden to banks should the agencies overuse their authority for this supplement. One of these commenters also expressed concern about the absence of a prior opportunity to evaluate and comment on the data to be collected on the supplement, which led the commenter to recommend that such data be accorded confidential treatment. In contrast, the other commenter recommended that the agencies should permit institutions to request confidential treatment for their data. Finally, both of these commenters, as well as the fourth commenter, questioned what the submission deadline for the supplement would be. In addition, the fourth commenter recommended that the agencies set specific criteria for identifying the banks that must complete the supplement and limit the data to be collected to specific predefined items. This commenter also sought clarification of the circumstances in which there would be an “immediate and critical need” for data.
The Paperwork Reduction Act of 1995 and OMB's implementing regulation (5 CFR 1320) establish procedures for obtaining OMB approval for information collections. The November 2002 notice that the agencies published in the
Furthermore, the agencies believe that they established appropriate constraints in their proposal with respect to their use of a Call Report supplement in order to limit the frequency of its use and the resulting reporting burden. In this regard, to limit the potential for overuse of the Call Report supplement, the agencies proposed that the members of the Federal Financial Institutions Examination Council would be required to approve the specific use of the supplement. Thus, the Examination Council's Reports Task Force would not have the delegated authority to institute a data collection using the Call Report supplement. The agencies note that the Board has used its authority to collect the bank holding company supplement (FR Y-9CS) only twice over the last 18 years, and its most recent use was to capture information on new activities authorized by the Gramm-Leach-Bliley Act of 1999.
In their November 2002 proposal, the agencies also stated that in any quarter in which the supplement were to be collected, no more than 10 percent of the banks under each agency's supervision would be required to complete the supplement and the reporting burden imposed on these banks would not exceed one hour per quarter. This is based on the assumption that the event giving rise to an immediate and critical data need would have a significant effect on a limited number of institutions. Thus, if the agencies were confronted with an immediate and critical need for data from more than 10 percent of their supervised banks or if the collection of such data would impose a reporting burden greater than one hour per quarter, the agencies would have to request OMB approval to use the Call Report supplement to collect the data. Otherwise, the agencies would need to follow the emergency procedures established under the Paperwork Reduction Act for obtaining the authority to collection the data on a one-time basis. Should there be a continuing need for data reported on the supplement or collected under emergency authority, the agencies would have to adhere to the standard Paperwork Reduction Act procedures for revising an existing approved information collection.
As for the circumstances in which the agencies would envision an “immediate and critical need” for data, the proposal cited as examples an unexpected market event or change in credit conditions that materially affects certain institutions as well as a statutory change. Another example would be a material change in accounting standards. If and when an
At present, a bank's completed Call Report data are subjected to numerous edit checks to assess the accuracy and reasonableness of the reported data after the data have been electronically submitted to the agencies. If the agencies' validation process identifies any edit failures or exceptions in a bank's reported data, an agency Call Report analyst normally contacts the bank, typically by telephone, to obtain either an explanation of the facts and circumstances that support the correctness of data as reported or any necessary corrections. This follow-up with a bank takes place anywhere from one day to four weeks after a bank has submitted its data.
Under the new business model, the validation process will take place in conjunction with a bank's submission of its Call Report data to the agencies. The CDR will contain all of the edit criteria and formulas, where they would be publicly available. Call Report preparation software into which the edits have been incorporated will identify any edit failures or exceptions while a bank is completing its report. The bank will then be able to correct its data to eliminate any validity edit failures, which are mathematical and logical tests. The software will also provide a method for the bank to supply explanatory comments concerning any quality edit exceptions, which are tests of the reasonableness of the data, including tests against historical performance and other relational tests.
Upon implementation of the CDR, the agencies proposed to not accept a bank's Call Report submission if it contains any validity edit failures and lacks explanatory comments for any quality edit exceptions. Because a bank would be aware of any edit failures or exceptions as it completes its Call Report, edit failures and exceptions will be addressed immediately rather than after-the-fact as they are under the agencies' current approach to data validation. Although banks will still have to correct validity edit failures and provide explanations for quality edit exceptions that support their reported data, the planned shift in the validation process should reduce the agencies' subsequent questions about these data. The new process also should result in quicker validation, acceptance, disclosure, and use of individual bank Call Report data.
Three banks and two bankers' associations commented on several matters relating to this aspect of the November 2002 proposal. Four of these commenters stated that the proposed requirement for a bank to provide explanatory comments for quality edit exceptions by the submission deadline for its Call Report data, rather than in response to an agency inquiry after the data have been filed and edited, will necessitate more work on the bank's part before it files its data than under the current processing system. They indicated that this has the potential to increase reporting burden and reduce the time available to a bank to ensure the accuracy of its reported data. The fifth commenter stated that the quality edits must be logical and reasonable in number so that banks do not spend an unreasonable amount of time and effort providing explanatory comments.
The agencies acknowledge that the change in the timing of when banks need to address edit failures and exceptions means that banks will need to allot time prior to the Call Report submission deadline to address any edit failures or exceptions identified by their Call Report preparation software. However, under the agencies' current validation process, the average number of edit exceptions identified upon receipt of Call Report data is from 3 to 4 per bank. The actual number of edit exceptions varies from none for about 35 percent of all banks to an average of about 12 for the largest banks with foreign offices. The number of edit exceptions per bank is not expected to change with the introduction of the CDR. Thus, the number of explanations that most banks will need to provide as part of their Call Report submission under the new business model should not be excessive. Furthermore, one of the purposes for implementing the new process is to ensure that banks are accountable for the quality and accuracy of their data so that the data validation process can be completed sooner, which will enable the data to be made available to users within the agencies and to the public earlier.
Four of the commenters sought assurance from the agencies that banks' explanatory comments for quality edit exceptions would be accorded confidential treatment. Reasons given for this request included the following: (1) Public disclosure of explanatory comments could place banks at a competitive disadvantage compared to other companies not subject to such disclosure requirements; (2) the explanatory comments are of a supervisory nature and are supplemental to the Call Report data; (3) the comments may be misinterpreted by the public; and (4) edit exceptions may occur as a result of institution-specific business strategies or transactions.
Under the agencies' current data validation approach, agency Call Report analysts record the explanations they obtain from banks concerning edit exceptions that are identified when their Call Report data are processed after they have been submitted to the agencies. Obtaining these after-the-fact explanations is an element of the agencies' overall supervision of banks and, as commenters observed, the explanations currently receive confidential treatment. The agencies' adoption of the new business model will simply shift the timing of receipt of the explanations that banks will provide to support the correctness of the data they have reported. Accordingly, the agencies will continue to treat banks'
Five commenters recommended that the agencies disclose the quality edits they plan to implement in advance of their effective date so that banks can evaluate and comment on them. All but one of these commenters suggested that the issuance of these edits take place at least two quarters in advance. Another commenter expressed concern that because explanatory comments about edit exceptions would be an integral part of a bank's Call Report submission, the edits themselves would be considered part of the reporting requirements, which would make them subject to notice and comment. The agencies believe that both they and banks will benefit from the release of planned edits prior to their implementation date. The implementation of revisions to the data collected in the Call Report normally takes place as of the March 31 report date. The agencies' timeline for the introduction of reporting revisions under the new business model calls upon them to make the edits associated with reporting revisions available to banks, software vendors, and other interested parties for review on the CDR Web site five and one half months before the customary March 31 effective date.
Two commenters indicated that some banks on occasion have triggered certain validity edit failures due to unusual circumstances and not because of inaccurately reported data. These commenters expressed concern that there would be situations in which the agencies would not accept a bank's Call Report data due to a validity edit failure caused by a problem with the edit itself rather than with the data. This could result in the late filing of an institution's data, which could subject the institution to monetary penalties. These two commenters as well as a third recommended that the agencies' new business model include an override feature that would allow them to accept data as reported when a validity edit problem exists. The agencies are reviewing their validity edits to ensure that they are properly designated as such. Any that are more properly considered quality edits will be redesignated accordingly. In addition, once the new business model is implemented, should the agencies find that an edit contained within the CDR is not performing properly, they will be able to override the edit until the problem is resolved.
Two commenters also requested that, when a bank has reached the Call Report submission deadline but its data contain one or more quality edit exceptions, the bank should be allowed to file its data while indicating that the exception is still under investigation. From the agencies' perspective, a key reason for requiring banks to provide explanatory comments concerning quality edit exceptions is to hold banks accountable and responsible for the quality of the Call Report data that they submit. When a bank prepares its data, it will need to complete its internal review process at an early enough date prior to the submission deadline so that if changes to the bank's Call Report data arise from the final review of the data and trigger edit exceptions, the bank has sufficient time to do any necessary research. Therefore, the agencies do not believe it is appropriate for a bank to file its Call Report with an explanatory comment stating that it is investigating the reason for an edit exception. In addition, as noted above, the average number of edit exceptions per bank Call Report under the agencies' existing validation process is low.
Two commenters noted that there are quality edit exceptions that recur from quarter to quarter and suggested that the new business model should permit some flexibility in responding to quality edit exceptions. One possible means for doing so would be by providing a method that would enable banks to carry quality edit explanations forward from one quarter to the next so that they can avoid reentering the same explanation in successive quarters. The agencies recognize that such a method would aid in reducing burden, but they are also concerned about the potential for a bank to carry forward the prior quarter's explanation when that explanation does not fit the circumstances giving rise to the quality edit exception in the current quarter. Nevertheless, the Call Report software vendors are aware of this matter and each vendor will determine the level of service that it will make available to its bank customers in its software.
In addition, two commenters sought a better explanation of what constitutes a quality edit for which an explanation would be required in order for a bank's Call Report data to be accepted. More specifically, one commenter asked whether the quality edits include edits that compare a bank's currently reported data to data reported in a prior period and to data reported in another regulatory report,
Finally, one commenter recommended that the agencies not immediately finalize their proposal to not accept a Call Report submission that contains any validity edit failures and lacks explanatory comments for any quality edit exceptions, but to continue to work with the banking industry to ensure that the Call Report acceptance process is workable and secure before implementing it. In the time since this comment was received in January 2003, the agencies have established a collaborative working group of representatives from banking institutions and industry trade groups. This group serves as a two-way vehicle for gaining input from, and responding to, banks concerning all aspects of the new business model, including the criteria for acceptance of Call Report submissions. Through meetings and conference calls, the agencies are in frequent communication with industry representatives. The collaborative process will also entail voluntary testing of the new CDR system in three phases prior to industry-wide implementation: A functional pilot test beginning in approximately April 2004, an end-to-end test beginning in approximately May 2004, and a volume test beginning
Comments are invited on:
(a) Whether the proposed revisions to the Call Report collections of information are necessary for the proper performance of the agencies' functions, including whether the information has practical utility;
(b) The accuracy of the agencies' estimates of the burden of the information collections as they are proposed to be revised, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of information collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information.
Comments submitted in response to this notice will be shared among the agencies. All comments will become a matter of public record. Written comments should address the accuracy of the burden estimates and ways to minimize burden as well as other relevant aspects of these information collection requests.
In rule document 03-31739 beginning on page 74472 in the issue of Wednesday, December 24, 2003, make the following correction:
On page 74472, in the second column, under the heading
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Proposed rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR) to implement changes to the Interstate Transportation Act, which abolished tariff-filing requirements for motor carriers of freight and the Interstate Commerce Commission. Also, the rule implements changes resulting from the Federal Management Regulation amendments that require use of commercial bills of lading for domestic shipments.
Interested parties should submit comments in writing on or before March 29, 2004, to be considered in the formulation of a final rule.
Submit written comments to—General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, ATTN: Laurie Duarte, Washington, DC 20405.
Submit electronic comments via the Internet to—
Please submit comments only and cite FAR case 2002-005 in all correspondence related to this case.
The FAR Secretariat at (202) 501-4755 for information pertaining to status or publication schedules. For clarification of content, contact Ms. Jeritta Parnell, Procurement Analyst, at (202) 501-4082. Please cite FAR case 2002-005.
This proposed rule amends the FAR to implement changes to the Interstate Transportation Act. The Act has been substantially amended in recent years, most notably by the Trucking Industry Reform Act of 1994, which abolished tariff-filing requirements for motor carriers of freight, and by the Interstate Commerce Commission (ICC) Termination Act of 1995 (Pub. L. 014-88), which abolished the ICC. Also, the rule implements changes resulting from the Federal Management Regulation amendments that require use of commercial bills of lading for domestic shipments. This rule proposes to—
• Move FAR Subpart 42.14, Traffic and Transportation Management, to FAR Part 47, Transportation;
• Delete the clauses at FAR 52.242-10 and FAR 52.242-11, and revise and relocate FAR clause 52.242-12 to FAR 52.247-68;
• Add definitions of “Bill of lading,” “Commercial bill of lading,” and “Government bill of lading” and clarify the usage of each term throughout FAR Part 47;
• Add definitions of “Government rate tenders,” “Household goods,” “Noncontiguous domestic trade,” and “Release/declared value”
• Require the use of commercial bills of lading for domestic shipments;
• Revise the references to “49 U.S.C. 10721” to read “49 U.S.C. 10721 and 13712” throughout FAR Part 47 to make it clear that government rate tenders can be used in certain situations for the transportation of household goods by rail carrier (authorized by 49 U.S.C. 10721), as well as by motor carriers, water carrier, and freight forwarder (authorized by 49 U.S.C. 13712 and the definition of “carrier” at 49 U.S.C. 12102);
• Update the fact that the Federal Motor Carrier Safety Administration prescribes commercial zones at 49 CFR part 372, subpart B; and
• Make other conforming and editorial changes to FAR Part 47 and related clauses.
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Councils do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the proposed changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Government procurement.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 42, 47, 52, and 53 as set forth below:
1. The authority citation for 48 CFR parts 42, 47, 52, and 53 is revised to read as follows:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
2. Remove and reserve Subpart 42.14.
3. Amend section 47.000 by revising paragraph (a)(2) to read as follows:
(a) * * *
(2) Acquiring transportation or transportation-related services by contract methods other than bills of lading, transportation requests, transportation warrants, and similar transportation forms. Transportation and transportation services can be obtained by acquisition subject to the FAR or by acquisition under 49 U.S.C. 10721 or 49 U.S.C. 13712. Even though the FAR does not regulate the acquisition of transportation or transportation-related services when the bill of lading is the contract, this contract method is widely used and, therefore, relevant guidance on the use of the bill of lading is provided in this part (see 47.104).
4. Amend section 47.001 by adding, in alphabetical order, the definitions
(1)
(2)
(1) The householder, except such term does not include property moving from a factory or store, other than property that the householder has purchased with the intent to use in his or her dwelling and is transported at the request of, and the transportation charges are paid to the carrier by, the householder; or
(2) Another party.
5. Revise section 47.002 to read as follows:
All Government personnel concerned with the following activities shall follow the regulations in part 47 as applicable:
(a) Acquisition of supplies.
(b) Acquisition of transportation and transportation-related services.
(c) Transportation assistance and traffic management.
(d) Administration of transportation contracts, transportation-related services, and other contracts that involve transportation.
(e) The making and administration of contracts under which payments are made from Government funds for—
(1) The transportation of supplies;
(2) Transportation-related services; or
(3) Transportation of contractor personnel and their personal belongings.
6. Amend section 47.101 by—
a. Redesignating paragraphs (a), (b), (c), (d), and (e) as (c), (d), (e), (f), and (g), respectively; and adding new paragraphs (a), (b), and (h); and
b. Amending newly designated paragraph (d)(2) introductory text by removing “subparagraph (b)(1) above” and adding “paragraph (d)(1) of this section” in its place. The added text reads as follows:
(a) For domestic shipments, the contracting officer shall authorize shipments on commercial bills of lading (CBL's). Government bills of lading (GBL's) may be used for international or noncontiguous domestic trade shipments or when otherwise authorized.
(b) The contract administration office (CAO) shall ensure that instructions to contractors result in the most efficient and economical use of transportation services and equipment. Transportation personnel will assist and provide transportation management expertise to the CAO. Specific responsibilities and details on transportation management are located in the Federal Management Regulation at 41 CFR parts 102-117 and 102-118. (For the Department of Defense, DoD 4500.9-R, Defense Transportation Regulation.)
(h) When a contract specifies delivery of supplies f.o.b. origin with transportation costs to be paid by the Government, the contractor shall make shipments on bills of lading, or on other shipping documents prescribed by Military Traffic Management Command in the case of seavan containers, either at the direction of or furnished by the CAO or the appropriate agency transportation office.
7. Revise section 47.103 and add sections 47.103-1 and 47.103-2 to read as follows:
(a)(1) Regulations and procedures governing the bill of lading, documentation, payment, and audit of transportation services acquired by the United States Government are prescribed in 41 CFR part 102-118, Transportation Payment and Audit.
(2) For DoD shipments, corresponding guidance is in DoD 4500.9-R, Defense Transportation Regulation, Part II.
(b) Under 31 U.S.C. 3726, all agencies are required to establish a prepayment audit program. For details on the establishment of a prepayment audit,
Complete and insert the clause at 52.247-67, Submission of Transportation Documents for Audit, in solicitations and contracts when a cost-reimbursement contract is contemplated and the contract or a first-tier cost-reimbursement subcontract thereunder will authorize reimbursement of transportation as a direct charge to the contract or subcontract.
8. Revise sections 47.104 through 47.104-5 to read as follows:
(a) This subpart explains statutory authority for common carriers subject to the jurisdiction of the Surface Transportation Board (motor carrier, water carrier, freight forwarder, rail carrier) to offer to transport persons or property for the account of the United States without charge or at “a rate reduced from the applicable commercial rate”. Reduced rates are offered in a Government rate tender. Additional information for civilian agencies is available in the Federal Management Regulation (41 CFR chapter 102) and for DoD in the Defense Transportation Regulation (DoD 4500.9-R).
(b) Reduced rates offered in a Government rate tender are authorized for transportation provided by a rail carrier, for the movement of household goods, and for movement by or with a water carrier in noncontiguous domestic trade.
(1) For Government rate tenders submitted by a rail carrier, “a rate reduced from the applicable commercial rate” is a rate reduced from a rate regulated by the Surface Transportation Board.
(2) For Government rate tenders submitted for the movement of household goods, “a rate reduced from the applicable commercial rate” is a rate reduced from a rate contained in a published tariff subject to regulation by the Surface Transportation Board.
(3) For Government rate tenders submitted for movement by or with a water carrier in noncontiguous domestic trade, “a rate reduced from the applicable commercial rate” is a rate reduced from a rate contained in a published tariff required to be filed with the Surface Transportation Board.
(a) 49 U.S.C. 10721 and 13712 rates are published in Government rate tenders and apply to shipments moving for the account of the Government on—
(1) Commercial bills of lading endorsed to show that total transportation charges are assignable to, and will be reimbursed by, the Government (see the clause at 52.247-1, Commercial Bill of Lading Notations); and
(2) Government bills of lading.
(b) Agencies may negotiate with carriers for additional or revised 49 U.S.C. 10721 and 13712 rates in appropriate situations. Only personnel authorized in agency procedures may carry out these negotiations. The following are examples of situations in which negotiations for additional or revised 49 U.S.C. 10721 and 13712 rates may be appropriate:
(1) Volume movements are expected.
(2) Shipments will be made on a recurring basis between designated places, and substantial savings in transportation costs appear possible even though a volume movement is not involved.
(3) Transit arrangements are feasible and advantageous to the Government.
(a)
(b)
(a) 49 U.S.C. 10721 and 13712 rates may be applied to shipments other than those made by the Government if the total benefit accrues to the Government,
(b) 49 U.S.C. 10721 and 13712 rates may be applied to the movement of household goods and personal effects of contractor employees who are relocated for the convenience and at the direction of the Government and whose total transportation costs are reimbursed by the Government.
(c) The clause at 52.247-1, Commercial Bill of Lading Notations, will ensure that the Government receives the benefit of lower 49 U.S.C. 10721 and 13712 rates in cost-reimbursement contracts as described in paragraphs (a) and (b) of this subsection.
(d) Contracting officers shall—
(1) Include in contracts a statement requiring the contractor to use carriers that offer acceptable service at reduced rates if available; and
(2) Ensure that contractors receive the name and location of the transportation officer designated to furnish support and guidance when using Government rate tenders.
(e) The transportation office shall—
(1) Advise and assist contracting officers and contractors; and
(2) Make available to contractors the names of carriers that provide service under 49 U.S.C. 10721 and 13712 rates, cite applicable rate tenders, and advise contractors of the statement that must be shown on the carrier's commercial bill of lading (see the clause at 52.247-1, Commercial Bill of Lading Notations).
(a) In order to ensure the application of 49 U.S.C. 10721 and 13712 rates, where authorized (see 47.104(b)), insert the clause at 52.247-1, Commercial Bill of Lading Notations, in solicitations and contracts when the contracts will be—
(1) Cost-reimbursement contracts, including those that may involve the movement of household goods (see 47.104-3(b)); or
(2) Fixed-price f.o.b. origin contracts (other than contracts at or below the simplified acquisition threshold) (see 47.104-2(b) and 47.104-3).
(b) The contracting officer may insert the clause at 52.247-1, Commercial Bill of Lading Notations, in solicitations and contracts made at or below the simplified acquisition threshold when it is contemplated that the delivery terms will be f.o.b. origin.
When 49 U.S.C. 10721 and 13712 rates apply, transportation offices or contractors, as appropriate, shall identify the applicable Government rate tender by endorsement on bills of lading.
9. Amend section 47.105 in the last sentence of paragraph (b) by removing the words “appropriate area headquarters of the”.
10. Amend section 47.200 by revising paragraphs (b)(3), (d), and (e) to read as follows:
(b) * * *
(3) Household goods for which rates are negotiated under 49 U.S.C. 1072 and 13712; or
(d) The procedures in this subpart are applicable to the transportation of household goods of persons being relocated at Government expense except when acquired—
(1) Under the commuted rate schedules as required in the Federal Travel Regulation (41 CFR chapter 302);
(2) By DoD under DoD 4500.9-R, Defense Transportation Regulation; or
(3) Under 49 U.S.C. 10721 and 13712 rates.
(e) Additional guidance for DoD acquisition of freight and passenger transportation is in the Defense Transportation Regulation.
11. Amend section 47.201 by removing the definition “Household goods”.
12. Remove and reserve section 47.203.
13. Amend section 47.207-9 by revising the last sentence of paragraph (a) to read as follows:
(a) * * *
14. Add sections 47.207-10 and 47.207-11 to read as follows:
Discrepancies incident to shipment include overage, shortage, loss, damage, and other discrepancies between the quantity and/or condition of supplies received from commercial carrier and the quantity and/or condition of these supplies as shown on the covering bill of lading or other transportation document. Regulations and procedures for reporting and adjusting discrepancies in Government shipments are in 41 CFR parts 102-117 and 102-118. (For the Department of Defense (DoD), see DoD 4500.9-R, Defense Transportation Regulation, Part II, Chapter 210.)
(a) For purposes of contract administration, a volume movement is—
(1) In DoD, the aggregate of freight shipments amounting to or exceeding 25 carloads, 25 truckloads, or 500,000 pounds, to move during the contract period from one origin point for delivery to one destination point or area; and
(2) In civilian agencies, 50 short tons (100,000 pounds) in the aggregate to move during the contract period from one origin point for delivery to one destination point or area.
(b) Transportation personnel assigned to or supporting the CAO, or appropriate agency personnel, shall report planned and actual volume movements in accordance with agency regulations. DoD activities report to the Military Traffic Management Command (MTMC) under DoD 4500.9-R, Defense Transportation Regulation. Civilian agencies report to the local office of GSA's Office of Transportation (
15. Add sections 47.208, 47.208-1 and 47.208-2 to read as follows:
Military (and as required, civilian agency) storage and distribution points, depots, and other receiving activities require advance notice of shipments en route from contractors' plants. Generally, this notification is required only for classified material; sensitive, controlled, and certain other protected material; explosives, and some other hazardous materials; selected shipments requiring movement control; or minimum carload or truckload shipments. It facilitates arrangements for transportation control, labor, space, and use of materials handling equipment at destination. Also, timely receipt of notices by the consignee transportation office precludes the incurring of demurrage and vehicle detention charges.
The contracting officer shall insert the clause at 52.247-68, Report of Shipment (REPSHIP), in solicitations and contracts when advance notice of shipment is required for safety or security reasons, or where carload or truckload shipments will be made to DoD installations or, as required, to civilian agency facilities.
16. Amend section 47.303-1 by revising paragraphs (a)(4) and (b)(5)(v) to read as follows:
(a) * * *
(4) If stated in the solicitation, to any Government-designated point located within the same city or commercial zone as the f.o.b. origin point specified in the contract (the Federal Motor Carrier Safety Administration prescribes commercial zones at Subpart B of 49 CFR part 372).
(b) * * *
(5) * * *
(v) Special instructions or annotations requested by the ordering agency for commercial bills of lading;
17. Amend section 47.303-3 by revising paragraph (a)(1)(iv) to read as follows:
(a) * * *
(1) * * *
(iv) If stated in the solicitation, to any Government-designated point located within the same city or commercial zone as the f.o.b. origin point specified in the contract (the Federal Motor Carrier Safety Administration prescribes commercial zones at Subpart B of 49 CFR part 372); and
18. Amend section 47.303-4 by revising paragraph (a)(1)(iv) to read as follows:
(a) * * *
(1) * * *
(iv) If stated in the solicitation, to any Government-designated point located within the same city or commercial zone as the f.o.b. origin point specified in the contract (the Federal Motor Carrier Safety Administration prescribes commercial zones at Subpart B of 49 CFR part 372); and
19. Amend section 47.303-5 by revising paragraph (a)(1)(iv); and in paragraph (c) by removing “The contracting officer shall insert” and adding “Insert” in its place. The revised text reads as follows:
(a) * * *
(1) * * *
(iv) If stated in the solicitation, to any Government-designated point located within the same city or commercial zone as the f.o.b. origin point specified in the contract; and
20. Amend section 47.303-13 in paragraph (a) by removing “
21. Amend section 47.303-15 in paragraph (b)(3) by removing the word “Government”.
22. Amend section 47.305-3 in the first sentence of the introductory paragraph by removing “, and to 42.1404-2, where the use of bills of lading, parcel post, and indicia mail is prescribed”.
23. Amend section 47.305-6 by—
a. Removing “c.i.f. destination” from the introductory text of paragraph (a)(4) and adding “c.i.f. (cost, insurance, freight) destination” in its place;
b. Removing “MILSTAMP” from paragraph (f)(1)(i) and adding “DoD 4500.9-R, Defense Transportation Regulation, Part II,” in its place; and revising the parenthetical in paragraph (f)(1)(ii) to read “(see DoD 4500.9-R, Defense Transportation Regulation, Part II)”; and
c. Removing “(
24. Amend section 47.305-13 in paragraph (b)(3) by removing the last sentence.
25. Amend section 47.504 in paragraph (a) by removing “of the Panama Canal Commission or”.
26. Remove and reserve sections 52.242-10, 52.242-11, and 52.242-12.
27. Amend section 52.247-1 by revising the date of the clause to read “(Date)”; and by removing the word “If” from the introductory paragraph of the clause and adding “When” in its place.
28. Amend section 52.247-3 by—
a. Revising the date of the clause to read “(Date)”;
b. Removing “Interstate Commerce Commission” from the end of paragraph (a) of the clause and adding “Surface Transportation Board” in its place; and
c. Removing “(see 49 CFR 1048)” from the second sentence of paragraph (b)(2) of the clause and adding “(see Subpart B of 49 CFR part 372)” in its place.
29. Amend section 52.247-29 by revising the date of the clause and paragraphs (a)(4) and (b)(5)(v) to read as follows:
(a) * * *
(4) If stated in the solicitation, to any Government-designated point located within the same city or commercial zone as the f.o.b. origin point specified in the contract (the Federal Motor Carrier Safety Administration prescribes commercial zones at Subpart B of 49 CFR part 372).
(b) * * *
(5) * * *
(v) Special instructions or annotations requested by the ordering agency for commercial bills of lading;
(End of clause)
30. Amend section 52.247-30 by revising the date of the clause and paragraph (b)(5)(v) to read as follows:
(b) * * *
(5) * * *
(v) Special instructions or annotations requested by the ordering agency for bills of lading;
(End of clause)
31. Amend section 52.247-31 by revising the date of the clause and paragraphs (a)(1)(iv) and (b)(5)(v) to read as follows:
(a) * * *
(1) * * *
(iv) If stated in the solicitation, to any Government-designated point located within the same city or commercial zone as the f.o.b. origin point specified in the contract (the Federal Motor Carrier Safety Administration prescribes commercial zones at Subpart B of 49 CFR part 372); and
(b) * * *
(5) * * *
(v) Special instructions or annotations requested by the ordering agency for commercial bills of lading;
(End of clause)
32. Amend section 52.247-32 by revising the date of the clause and paragraph (a)(1)(iv); removing the word “commercial” from the first sentence of the introductory text of paragraph (b)(5); and revising paragraph (b)(5)(v) to read as follows:
(a) * * *
(1) * * *
(iv) If stated in the solicitation, to any Government-designated point located within the same city or commercial zone as the f.o.b. origin point specified in the contract (the Federal Motor Carrier Safety Administration prescribes commercial zones at Subpart B of 49 CFR part 372); and
(b) * * *
(5) * * *
(v) Special instructions or annotations requested by the ordering agency for bills of lading;
(End of clause)
33. Amend section 52.247-33 by revising the date of the clause and paragraphs (a)(1)(iv), (b)(5)(v), and the second sentence of (c)(2) to read as follows:
(a) * * *
(1) * * *
(iv) If stated in the solicitation, to any Government-designated point located within the same city or commercial zone as the f.o.b. origin point specified in the contract (the Federal Motor Carrier Safety Administration prescribes commercial zones at Subpart B of 49 CFR part 372); and
(b) * * *
(5) * * *
(v) Special instructions or annotations requested by the ordering agency for bills of lading;
(c)(1) * * *
(2) * * * If, at the time of shipment, the Government specifies a mode of transportation, type of vehicle, or place of delivery for which the offeror has set forth a differential, the Contractor shall include the total of such differential costs (the applicable differential multiplied by the actual weight) as a separate reimbursable item on the Contractor's invoice for the supplies.
(End of clause)
34. Amend section 52.247-38 by revising the date of the clause to read “(DATE)”; and in paragraph (b)(2) of the clause by adding “or other transportation receipt” after the word “lading”.
35. Amend section 52.247-43 by revising the date of the clause to read “(DATE)”; and removing the word “Government” from paragraph (b)(3) of the clause.
36. Amend section 52.247-52 by—
a. Revising the date of the clause to read “(DATE)”;
b. Removing “49 CFR 170-179” from paragraph (a)(3)(vi) of the clause and adding “49 CFR 173.403” in its place;
c. Removing “MILSTAMP” from paragraph (f)(1) of the clause and adding “transportation responsibilities under DoD 4500.9-R, Defense Transportation Regulation,” in its place; and
d. Removing the word “commercial” from paragraphs (h)(1) and (h)(2) of the clause.
37. Amend section 52.247-64 by revising the date of the clause to read “(DATE)”; and removing “of the Panama Canal Commission or” from paragraph (e)(1) of the clause.
38. Amend section 52.247-67 by—
a. Revising the section heading;
b. Revising the clause heading, paragraph (a)(1) introductory text, and (a)(2), and adding paragraph (a)(3);
c. Revising paragraphs (b) and (c); and
d. Removing the word “Contractor” from the first sentence of paragraph (d) and paragraph (d)(1) and adding “specified agency” in its place. The revised text reads as follows:
(a)(1) In accordance with paragraph (a)(2) of this clause, the Contractor shall submit to the address identified below, for prepayment audit, transportation documents on which the United States will assume freight charges that were paid—
(2) Cost-reimbursement Contractors shall only submit for audit those bills of lading with freight shipment charges exceeding $100. Bills under $100 shall be retained on-site by the Contractor and made available for on-site audits. This exception only applies to freight shipment bills and is not intended to apply to bills and invoices for any other transportation services.
(3) Contractors shall submit the above-referenced transportation documents to—
(
(b) The agency designated in paragraph (a)(3) of this clause shall forward original copies of paid freight bills/invoices, bills of lading, passenger coupons, and supporting documents as soon as possible following the end of the month, in one package, for postpayment audit to the—General Services Administration, ATTN: FBA, 1800 F Street, NW., Washington, DC 20405. The specified agency shall include the paid freight bills/invoices, bills of lading, passenger coupons, and supporting documents for first-tier subcontractors under a cost-reimbursement contract. If the inclusion of the paid freight bills/invoices, bills of lading, passenger coupons, and supporting documents for any subcontractor in the shipment is not practicable, the documents may be forwarded to GSA in a separate package.
(c) Any original transportation bills or other documents requested by GSA shall be forwarded promptly. The specified agency shall ensure that the name of the contracting agency is stamped or written on the face of the bill before sending it to GSA.
(End of clause)
39. Section 52.247-68 is added to read as follows:
As prescribed in 47.208-2, insert the following clause:
Unless otherwise directed by the Contracting Officer, the Contractor shall send a prepaid notice of shipment to the consignee transportation officer for all shipments of classified material, protected sensitive, and protected controlled material; explosives and poisons, classes A and B; radioactive materials requiring the use of a III bar label; or when a truckload/carload shipment of supplies weighing 20,000 pounds or more, or a shipment of less weight that occupies the full visible capacity of a railway car or motor vehicle, is given to any carrier (common, contract, or private) for transportation to a domestic (
(a) Message example:
(End of clause)
40. Revise section 53.247 to read as follows:
The commercial bill of lading is the preferred document for the transportation of property, as specified in 47.101.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Proposed rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR) to require offerors to submit representations and certifications electronically via the Business Partner Network (BPN), unless certain exceptions apply. The BPN is a grouping of systems that follow vendor data. Online Representations and Certifications Application (ORCA) is one application on the BPN to replace the paper based Representations and Certifications (Reps and Certs) process.
Interested parties should submit comments in writing on or before March 29, 2004, to be considered in the formulation of a final rule.
Submit written comments to—General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, ATTN: Laurie Duarte, Washington, DC 20405.
Submit electronic comments via the Internet to—
Please submit comments only and cite FAR case 2002-024 in all correspondence related to this case.
The FAR Secretariat at (202) 501-4755 for information pertaining to status or publication schedules. For clarification of content, contact Ms. Jeritta Parnell, Procurement Analyst, at (202) 501-4082. Please cite FAR case 2002-024.
Under current FAR regulations, offerors are required, for each solicitation issued, to complete certain provisions that require representations and certifications. One of the e-Government Integrated Acquisition Environment's (IAE) initiatives is to eliminate the administrative burden on offerors who must submit the same information to various contracting offices. Representations and certifications that are completed on-line can then be accessed by procurement offices across the Federal government. As part of this process, the software will use certain information that a contractor has already provided in the Central Contractor Registration (CCR) database. Therefore, this requirement only applies to offerors that also are required to register in the CCR database. FAC 16 published in the
This proposed rule amends FAR parts 12, 14, 15, and 52 to require offerors to—
(1) Provide representations and certifications electronically via the BPN Web site at
(2) Update the representations and certifications as necessary, but at least annually to ensure they are kept current, accurate, and complete; and
(3) Make changes that affect only one solicitation by completing the appropriate section of certain solicitation provisions.
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The changes may 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,
An Initial Regulatory Flexibility Analysis (IRFA) has been prepared and will be provided to the Chief Counsel for Advocacy for the Small Business Administration. The analysis is summarized as follows:
The FAR requires small businesses to provide representations and certifications for individual solicitations. However, FAR 15.209(g) and FAR 14.213 do permit annual submissions if authorized by individual agencies. This rule will establish a requirement for annual submissions by electronic means.
In an effort to broaden use and reliance upon e-business applications, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council are working with the Office of Federal Procurement Policy to eliminate the need to maintain paper-based sources of contractor information. The objective of this rule is to eliminate the need for offerors to submit the same information (
The rule will apply to small business offerors that also are required to register in the Central Contractor Registration (CCR) database. The reason for the link with CCR is that, as part of the on-line representations and certifications process, the software will use information that an offeror has already provided into the CCR database. The offeror will provide the additional information needed. Therefore, small businesses that are exempted from registering in the CCR database are also exempted from submitting representations and certifications electronically.
Based on Governmentwide data, approximately, 20,825 small businesses were awarded contracts of $25,000 or more in fiscal year 2002. It is estimated that a majority of them will be subject to the rule. Many of these businesses are already among the over 240,000 registrants in CCR.
Administrative or financial personnel that have general knowledge of the contractor's business are able to register by providing the pertinent information into the BPN Web site.
The proposed rule when finalized will not duplicate, overlap, or conflict with any other Federal rules.
There are no significant practical alternatives that will accomplish the objective of this rule. Continued reliance on a paper-based system would unnecessarily promote inefficiency associated with paper-based processes. The successful phase-in of CCR by the Department of Defense demonstrates that the Federal contracting community, including small businesses, is successfully transitioning to greater use of electronic tools and their associated efficiencies to conduct business.
The FAR Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the FAR Secretariat. The Councils will consider comments from small entities concerning the affected FAR parts 12, 14, 15, and 52 in accordance with 5 U.S.C. 610. Comments must be submitted separately and should cite 5 U.S.C 601,
The Paperwork Reduction Act (Pub. L. 104-13) applies because the proposed rule contains information collection requirements. The rule requires offerors to—
(1) Provide representations and certifications electronically via the BPN Web site;
(2) Update the representations and certifications as necessary, but at least annually to ensure they are kept current, accurate, and complete; and
(3) Make changes that affect only one solicitation by completing the appropriate section of certain solicitations.
The requirement to submit certain representations and certifications on line—
(a) Eliminates the administrative burden for the offeror of submitting the same information to various contracting offices; and
(b) Allows access by procurement offices across the Federal Government.
Individual FAR clearances are assigned to the majority of the representations and certifications listed in the rule. Four of the representations and certifications are managed under other agencies' clearances. The FAR clearances impacted by this rule are 9000-0018, 9000-0097, 9000-0094, 9000-0047, 9000-0150, 9000-0155, 9000-0134, 9000-0139, 9000-0024, 9000-0130, 9000-0025, and 9000-0090. The clearance associated with another agency is 1215-0072. It is a DoL clearance.
The above FAR clearances have been revised to reflect a “percentage of responses submitted electronically” of 75%, which in turn decreases the total annual hours associated with each burden. In accordance with (b)(1)(iv) of section 1320.3, Definitions, of 5 CFR 1320.3(b)(1)(iv), the definition of Burden includes “* * *
Submit comments, including suggestions for reducing this burden, not later than March 29, 2004, to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, Washington, DC 20405. Please cite OMB Control Numbers 9000-0018, 9000-0097, 9000-0094, 9000-0047, 9000-0150, 9000-0155, 9000-0134, 9000-0139, 9000-0024, 9000-0130, 9000-0025, and 9000-0090, Electronic Representations and Certifications.
Public comments are particularly invited on: whether this collection of information is necessary for the proper performance of functions of the FAR, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Requester may obtain a copy of the information collection package(s) from the General Services Administration, FAR Secretariat (MVA), Room 4035, Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control Numbers 9000-0018, 9000-0097, 9000-0094, 9000-0047, 9000-0150, 9000-0155, 9000-0134, 9000-0139, 9000-0024, 9000-0130, 9000-0025, and 9000-0090, Electronic Representations and Certifications, in all correspondence.
Government procurement.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 12, 14, 15, and 52 as set forth below:
1. The authority citation for 48 CFR parts 12, 14, 15, and 52 are revised to read as follows:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
2. Amend section 12.301 by adding a sentence after the second sentence in paragraph (b)(1) to read as follows:
(b) * * * Use the provision with its Alternate I in solicitations when an exception to Central Contractor Registration at FAR 4.1102(a) applies. * * *
3. Amend section 14.201-5 by revising paragraph (a) to read as follows:
(a)
(2) FAR clause 52.214-30, Annual Representations and Certifications—Sealed Bidding, shall be included in the solicitation to permit electronic submission of certain representations and certification under the circumstances prescribed at 14.201-6(u).
4. Amend section 14.201-6 by revising paragraph (u) to read as follows:
(u) Insert the provision at 52.214-30, Annual Representations and Certifications—Sealed Bidding, in invitations for bids that contain the clause at 52.204-7, Central Contractor Registration (
5. Revise section 14.213 to read as follows:
(a) Offerors shall submit electronic annual representations and certifications via the Business Partner Network (BPN) at
Offerors shall update the representations and certifications as necessary, but at least annually to ensure they are kept current, accurate, and complete. The representations and certifications are effective until one year from date of submission or update.
(b) If FAR clause 52.214-30 is included in the solicitation, do not include the following representations and certifications in the solicitation:
(1) 52.203-2, Certificate of Independent Price Determination.
(2) 52.203-11, Certification and Disclosure Regarding Payments to Influence Certain Transactions.
(3) 52.204-3, Taxpayer Identification.
(4) 52.204-5, Women-Owned Business (Other Than Small Business).
(5) 52.209-5, Certification Regarding Debarment, Suspension, Proposed Debarment, and Other Responsibility Matters.
(6) 52.214-14, Place of Performance Sealed Bidding.
(7) 52.215-6, Place of Performance.
(8) 52.219-1, Small Business Program Representations (Basic & Alternate I).
(9) 52.219-2, Equal Low Bids.
(10) 52.219-19, Small Business Concern Representation for the Small Business Competitiveness Demonstration Program.
(11) 52.219-21, Small Business Size Representation for Targeted Industry Categories Under the Small Business Competitiveness Demonstration Program.
(12) 52.219-22, Small Disadvantaged Business Status (Basic & Alternate I).
(13) 52.222-18, Certification Regarding Knowledge of Child Labor for Listed End Products.
(14) 52.222-22, Previous Contracts and Compliance Reports.
(15) 52.222-25, Affirmative Action Compliance.
(16) 52.222-48, Exemption from Application of Service Contract Act Provisions for Contracts for Maintenance, Calibration, and/or Repair of Certain Information Technology, Scientific and Medical and/or Office and Business Equipment Contractor Certification.
(17) 52.223-4, Recovered Material Certification.
(18) 52.223-9, Estimate of Percentage of Recovered Material Content for EPA-Designated Products (Alternate I only).
(19) 52.223-13, Certification of Toxic Chemical Release Reporting.
(20) 52.225-2, Buy American Act Certificate.
(21) 52.225-4, Buy American Act, North American Free Trade Agreement—Israeli Trade Act Certificate (Basic, Alternate I & II).
(22) 52.225-6, Trade Agreements Certificate.
(23) 52.226-2, Historically Black College or University and Minority Institution Representation.
(24) 52.227-6, Royalty Information (Basic & Alternate I).
(25) 52.227-15—Representation of Limited Rights Data and Restricted Computer Software.
(c) Offerors that have submitted annual representations and certifications shall complete the appropriate section of the provision at 52.214-30, Annual Representations and Certifications Sealed Bidding to—
(1) Affirm in their bids that the representations and certifications they have posted to the BPN are current for the purposes of the solicitation; or
(2) Make changes that affect only one solicitation.
6. Amend section 15.204-5 by revising paragraph (a) to read as follows:
(a)
(2) FAR clause 52.215-7, Annual Representations and Certifications—Negotiation, shall be included in the solicitation to permit electronic submission of certain representations and certifications via the BPN at
7. In section 15.209 revise paragraph (g) to read as follows:
(g)(1) Insert the provision at 52.215-7, Annual Representations and Certifications—Negotiation, in solicitations that contain the clause at FAR 52.204-7, Central Contractor Registration (
(2) If the provision at 52.215-7 is included in the solicitation, do not include the representations and certifications at 14.213(b) in the solicitation.
8. Amend section 52.212-1 by revising the date of the provision and paragraph (b)(8); and adding Alternate I to read as follows:
(b)
(8) A completed copy of the representations and certifications at FAR 52.212-3 (
(8) A completed written copy of the representations and certifications at FAR 52.212-3 excluding paragraph (j).
9. Amend section 52.212-3 by revising the date of the provision; adding an introductory paragraph; and revising paragraph (j) to read as follows:
An offeror shall complete only paragraph (j) of this provision if the offeror has completed the annual representations and certifications electronically via the Business Partner Network (BPN) (but see paragraph (j)(2)). If an offeror has not completed the annual representations and certifications electronically via the BPN, the offeror shall complete only paragraphs (b) through (i) of this provision.
(j)
[ ] (1) Are current, accurate, and complete as of the date of this offer and are incorporated in this offer by reference.
[ ] (2) Are current, accurate, and complete as of the date of this offer and are incorporated in this offer by reference, except for paragraphs __________.
[
These amended representation(s) and/or certification(s) are also incorporated in this offer and are current, accurate, and complete as of the date of this offer.
10. Revise section 52.214-30 to read as follows:
As prescribed in 14.201-6(u), insert the following provision:
The bidder has completed the annual representations and certifications electronically via the Business Partner Network (BPN) Web site at
[ ] (a) Are current, accurate, and complete as of the date of this offer and are incorporated in this bid by reference (
[ ] (b) Are current, accurate and complete as of the date of this bid and are incorporated in this bid by reference, except for the changes identified below [
These amended representation(s) and/or certification(s) are also incorporated in this bid and are current, accurate, and complete as of the date of this bid.
Any changes provided by the bidder do not automatically update the representations and certifications posted on the BPN.
11. Revise section 52.215-7 to read as follows:
As prescribed in 15.209(g), insert the following provision:
The offeror has completed the annual representations and certifications electronically via the Business Partner Network (BPN) Web site at
[ ] (a) Are current, accurate, and complete as of the date of this offer and are incorporated in this offer by reference (
[ ] (b) Are current, accurate, and complete as of the date of this proposal and are incorporated in this offer by reference, except for the changes identified below [
These amended representation(s) and/or certification(s) are also incorporated in this offer and are current, accurate, and complete as of the date of this proposal.
Any changes provided by the offeror do not automatically update the representations and certifications posted on the BPN.
Securities and Exchange Commission.
Proposed rule.
The Securities and Exchange Commission (“Commission”) is proposing new procedures that would govern the calculation, payment, and collection of fees and assessments on self-regulatory organizations pursuant to section 31 of the Securities Exchange Act of 1934. Under these new procedures, a national securities exchange or national securities association would provide the Commission with data on its securities transactions, the Commission would calculate the amount of fees and assessments due based on the volume of those transactions, and the Commission would bill the national securities exchange or national securities association that amount.
Comments must be received by February 26, 2004.
To help us process and review comments more efficiently, comments should be sent in hardcopy or by e-mail but not by both methods. All comments concerning this proposal should be submitted in triplicate to Jonathan G. Katz; Secretary; U.S. Securities and Exchange Commission; 450 5th Street, NW., Washington, DC 20549-0609. Comments also may be submitted electronically to the following e-mail address:
Michael Gaw, Special Counsel, 202-942-0158; or Christopher Solgan, Attorney, 202-942-7937; Division of Market Regulation; Securities and Exchange Commission; 450 5th Street, NW., Washington, DC 20549-1001.
Pursuant to Section 31 of the Securities Exchange Act of 1934 (“Exchange Act”),
Paragraph (b) of Section 31 requires each national securities exchange to “pay to the Commission a fee [at a specified rate] of the aggregate dollar amount of sales of securities (other than bonds [and certain other enumerated securities]) transacted on such national securities exchange.”
Paragraph (d) requires each national securities exchange and national securities association to “pay to the Commission an assessment
Paragraph (e) stipulates that the fees required by paragraphs (b) and (c) and the assessments required by paragraph (d) of Section 31 shall be paid: “(1) on or before March 15, with respect to transactions and sales occurring during the period beginning on the preceding September 1 and ending at the close of the preceding December 31; and (2) on or before September 30, with respect to transactions and sales occurring during the period beginning on the preceding January 1 and ending at the close of the preceding August 31.”
Paragraph (f) provides that “[t]he Commission, by rule, may exempt any sale of securities or any class of sales of securities from any fee or assessment imposed by this section, if the Commission finds that such exemption is consistent with the public interest, the equal regulation of markets and brokers and dealers, and the development of a national market system.”
The statute does not stipulate how the “aggregate dollar amount of sales”—as used in paragraphs (b) and (c) of Section 31—is to be calculated or who should do the calculation. The Commission has not previously defined this term by rule or mandated a formal procedure whereby the SROs must calculate and pay their Section 31 fees, instead permitting the SROs to develop their own procedures. As a result, the SROs have developed various means for determining the amounts owed:
• Two exchanges, the New York Stock Exchange (“NYSE”) and the American Stock Exchange (“Amex”), rely on a practice known as “self-reporting.” The exchanges do not independently calculate the aggregate dollar amount of sales on which they owe Section 31 fees. Instead, they rely on each clearing member firm to “self-report” the aggregate dollar amount of its sales, to multiply that amount by the fee rate, and to pay the exchange the resulting amount due. Each exchange aggregates the funds submitted by its clearing member firms and forwards this sum to the Commission.
• The National Association of Securities Dealers (“NASD”) determines the “aggregate dollar amount of sales” based on the transaction volume reported by NASD members to the Automated Confirmation Transaction Service (“ACT”). The NASD multiplies each clearing member's amount of sales by the fee rate and bills the member the result. However, the ACT data do not capture all sales on which Section 31 fees are due. Therefore, the NASD relies on member self-reporting with respect to certain odd-lot sales (
• The other equities exchanges calculate the aggregate dollar amount of sales that are subject to Section 31 fees based on the amount of each clearing member's transactions that are reported to the consolidated tape.
• The Options Clearing Corporation (“OCC”) pays Section 31 fees on behalf of the five options exchanges and Section 31 assessments on behalf of the two security futures exchanges. OCC calculates the aggregate dollar amount of sales, and the total number of round turn transactions on security futures, of each clearing member that is also an OCC participant and multiplies that number by the applicable rate under Section 31. OCC then deducts the amounts due for those transactions from each participant account, aggregates the funds collected from the participants, and forwards the sum to the Commission. OCC submits a single lump-sum payment to the Commission on behalf of these seven exchanges. OCC does not stipulate the amount paid on behalf of each exchange.
The Commission believes that the current arrangements may create uncertainties about whether the proper amounts due pursuant to Section 31 are being paid to the Commission. With proposed Rules 31 and 31T and Form R31, the Commission seeks to establish the total amounts payable under Section 31 with more reliable methods.
The proposed rule would require national securities exchanges and national securities associations to provide data on all of their securities transactions that are subject to Section 31. Based on that data, the Commission would calculate the amount owed by each SRO and issue bills twice per year.
Proposed Rule 31 would introduce the concepts of “covered sales” and “covered round turn transactions.” A covered sale would be a securities transaction subject to fees pursuant to paragraphs (b) or (c) of Section 31. As such, the term would not include any transactions in security futures, which are subject to assessments pursuant to paragraph (d) of Section 31. Paragraph (a)(6) of proposed Rule 31 would define “covered sale” to mean a sale of a security, other than an “exempt sale” or a sale of a security future, occurring on a national securities exchange or by or through any member of a national securities association otherwise than on a national securities exchange. The term “exempt sale,” defined in paragraph (a)(11) of proposed Rule 31, would include a sale exempted from fees by Section 31 itself or a sale that the Commission previously has exempted by rule.
A “covered round turn transaction” would be a securities transaction on which an assessment is owed pursuant to paragraph (d) of Section 31. Paragraph (a)(7) of proposed Rule 31 would define “covered round turn transaction” to mean a round turn transaction on a security future, other than a round turn transaction in a future on a narrow-based security index, occurring on a national securities exchange or by or through any member of a national securities association otherwise than on a national securities exchange. Paragraph (a)(14) of proposed Rule 31 would define “round turn transaction on a security future” as one purchase and one sale of a contract of sale for future delivery.
Proposed Rule 31 would impose a new duty on “covered SROs” to report to the Commission data on all of their covered sales and covered round turn transactions. The term “covered SRO” would include “covered exchanges” and “covered associations.” Paragraph (a)(5) of proposed Rule 31 would define “covered exchange” to mean a national securities exchange on which covered sales or covered round turn transactions occur. Currently, there are 11 national securities exchanges that would be covered exchanges under proposed Rule 31:
• Nine national securities exchanges registered pursuant to Section 6(a) of the
• Two national securities exchanges registered pursuant to Section 6(g) of the Exchange Act
To calculate the fees owed by each covered SRO pursuant to Section 31, the Commission would need to know the aggregate dollar amount of each SRO's covered sales. Unfortunately, there is currently no single source for this information. As described below, covered sales are reported, cleared, and settled in a variety of ways and data on covered sales exist in a variety of sources. Proposed Rule 31 and Form R31 would attempt to capture relevant information about all covered sales through the most reliable of the available sources. Data on covered round turn transactions could, however, be obtained from a single source.
A trade occurring on an exchange generally must be reported to that exchange for dissemination to the public and to begin the process of clearance and settlement. Exchanges have automated systems to receive and process these reports. If a trade occurs on a trading floor, exchange rules generally require both the buyer and the seller to submit a record of the trade to the exchange. The exchange attempts to match the records submitted by the buyer and the seller and to resolve any discrepancies (
Once a record of a locked-in, two-sided transaction has been established, the exchange reports the trade to a system known as the “consolidated tape.”
The exchanges usually forward to the appropriate registered clearing agency a record of each individual locked-in transaction, even if a particular transaction would not result in any net change in the accounts maintained by the clearing agency.
There are a few exceptions to the general rule that the exchanges report all of their transactions to a clearing agency. For example, some exchanges have rules that allow their members to clear and settle transactions outside of the regular clearing system (so-called “ex-clearing” transactions).
In addition, an exchange may allow an entity known as a “qualified special representative” (“QSR”) to report certain equity trades directly to NSCC for clearing. A QSR is an NSCC member that operates, has an affiliate that operates, or clears for a broker-dealer that operates, an automated execution system where the NSCC member is on the contraside of every transaction.
In the OTC market in equities, trades generally must be reported to either ACT or—if the transaction occurs in the ADF—to the Transaction Reporting and Comparison Service (“TRACS”). ACT is a transaction reporting and comparison system operated by the Nasdaq Stock Market,
ACT is the trade reporting system for all OTC equity markets except for the ADF. The NASD has developed a separate trade reporting system, known as TRACS, for trades occurring in the ADF. TRACS is modeled after and operates in a manner similar to ACT.
The process whereby reports of transactions in options and security futures are matched and locked in is very similar to that for equity trading on the exchanges. The post-trade processing of options and security futures trading on national securities exchanges differs slightly, however, in that the exchanges forward reports of all such trades to a registered clearing agency (OCC), whereas with equities some trades are not reported to NSCC by the exchange itself (in the case of trades reported to a designated clearing agency by a QSR) or not reported at all (in the case of ex-clearing trades). Exchange-listed options and security futures do not trade over-the-counter; therefore, no national securities association would incur a liability to the Commission under Section 31 for such trading.
In addition, some non-exchange-listed options trade over-the-counter, but a national securities association would not incur any liability to the Commission under Section 31 for such trading because OTC options are not “registered on a national securities exchange or subject to prompt last sale reporting pursuant to the rules of the Commission or a registered national securities association.”
One of the primary sources of data on covered sales and covered round turn transactions under the proposed rule would be the “designated clearing agencies.” Paragraph (a)(9) of proposed Rule 31 would define “designated clearing agency” to mean any clearing agency registered under Section 17A of the Exchange Act
The Commission believes that clearing data obtained from the designated clearing agencies would provide a sound basis for the calculation of Section 31 fees for the covered exchanges. Market participants have a strong incentive to ensure the accuracy of the trade data reported to the clearing agencies; without accurate data, the clearing agencies cannot move the correct amount of funds and securities between participant accounts to settle transactions. The Commission anticipates that the vast majority of covered sales occurring on the covered exchanges would be captured by the clearing data available from the designated clearing agencies.
In situations where clearing agency data is incomplete (in the case of trades reported to a designated clearing agency by a QSR) or nonexistent (in the case of ex-clearing trades), the Commission would have to rely on other sources. One such source would be a covered SRO's “trade reporting system.” Paragraph (a)(16) of proposed Rule 31 would define “trade reporting system” to mean an automated facility of a covered SRO used to collect or compare trade data. Only automated facilities fall within the definition; a predominantly paper-based system for collecting or comparing trade data, such as the reporting system currently used by NASD members to report their odd-lot transactions to the NASD, would not be considered a “trade reporting system.” A covered SRO might have more than one trade reporting system.
Paragraph (e) of Section 31 stipulates that fees and assessments are due twice each year: (1) March 15, for sales and transactions “occurring” during the period beginning on the preceding September 1 and ending at the close of the preceding December 31; and (2) September 30, for sales and transactions “occurring” during the period beginning on the preceding January 1 and ending at the close of the preceding August 31. A securities transaction can take several days to complete, from the day that a binding contract to trade is established to the day that funds and securities move between accounts to settle the transaction. Section 31 does not identify on which date during the process a transaction “occurs,” although the statute suggests that a single date must be selected in order to assign every transaction to one of the billing periods. For example, liability for a sale that is negotiated on August 30 but does not
Proposed Rule 31 introduces the concept of the “charge date” to clarify this issue. Paragraph (a)(3) of proposed Rule 31 would define the charge date as the date on which a covered sale or covered round turn transaction occurs for purposes of determining the liability of a covered SRO pursuant to Section 31 of the Exchange Act. The charge date could be either the trade date or the settlement date; as discussed below, the date to be used would depend on the manner in which the trade is reported and cleared. The charge dates set forth in proposed Rule 31 would largely codify the existing practices of the SROs.
Paragraph (b)(1) of proposed Rule 31 would require covered SROs to submit to the Commission proposed Form R31 within ten business days after the end of each month.
Proposed Form R31 would be organized as follows:
In Part I of proposed Form R31, a covered exchange would be required to report the aggregate dollar amount of the covered sales that: (1) occurred on the exchange; (2) have a charge date in the month of the report; and (3) the exchange itself reported to a designated clearing agency. The form would require covered exchanges to make separate entries for sales of equities and sales of options. Each covered exchange also would be required to report the total number of covered round turn transactions that: (1) occurred on the exchange; (2) have a charge date in the month of the report; and (3) the exchange reported to a designated clearing agency.
In addition, paragraph (b)(3)(i) of proposed Rule 31 would require a covered association to report in Part I the aggregate dollar amount of covered sales that: (1) occurred by or through any of the association's members; (2) have a charge date in the month of the report; and (3) resulted from an exercise
The Commission believes that it is not appropriate for Section 31 fees on sales of securities resulting from the exercises of physical delivery exchange-traded options to be combined into a single payment that obscures the SRO on whose behalf the payment is being made. Therefore, proposed Rule 31 would clarify that the covered association by or through the members of which such sales occur—presently the NASD—would be required to report data on such covered sales and pay the corresponding Section 31 fees.
The Commission believes that this approach is consistent with paragraphs (b) and (c) of Section 31. Paragraph (b) requires a national securities exchange to pay Section 31 fees on “sales of securities * * * transacted on such national securities exchange,” while paragraph (c) requires a national securities association to pay fees on “sales transacted by or through any member of such association otherwise than on a national securities exchange.” The Commission does not believe that a sale of a security resulting from the exercise of a physical delivery option can be viewed as being “transacted on [a] national securities exchange.”
Paragraph (a)(4) of proposed Rule 31 would provide that, for a covered sale or covered round turn transaction included in the data reported in Part I by a covered exchange, the charge date would be the settlement date. Part I data would be supplied by a designated clearing agency, the primary function of which is to clear and settle securities transactions and which will, of course, know the settlement date of a transaction. By contrast, a designated clearing agency might have to develop new procedures to track and record transactions by trade date. Accordingly, the Commission believes that it would be more practical for the designated clearing agencies to provide data on covered sales and covered round turn transactions based on the settlement date.
However, paragraph (a)(4) also provides that a covered sale resulting from the exercise of a physical delivery exchange-traded option would use the trade date as the charge date. In this case, the trade can be viewed as occurring when OCC sends an instruction to NSCC to move funds and securities between NSCC participant accounts to effect the exercise. The Commission believes that the alternative—for OCC to build systems to monitor when settlement at NSCC is complete—would be impractical. Therefore, the Commission believes that trade date should be used in this instance for the charge date.
In Part II, a covered exchange would be required to provide the aggregate dollar amount of the covered sales that: (1) occurred on the exchange; (2) have a charge date in the month of the report; and (3) it captured in a trade reporting system but does not report to a designated clearing agency.
In addition, a covered exchange that permits its members to report trades directly to NSCC through a QSR would be required to report in Part II the aggregate dollar amount of any such trades that constitute covered sales.
Finally, a covered association (
Paragraph (a)(4) of proposed Rule 31 would provide that, for any covered sale included in the data reported in Part II, the charge date would be the trade date. The trade date is one of the most important pieces of information captured by a trade reporting system. By contrast, a trade reporting system is likely to have little if any information about the settlement of transactions that are reported to it. Therefore, the Commission believes that the charge date for these covered sales should be the trade date.
Part III would require every covered SRO to provide the aggregate dollar amount of covered sales that: (1) Occurred on the exchange (or, in the case of a covered association, by or through any member of the association otherwise than on a national securities exchange); (2) have a charge date in the month of the report; and (3) it neither reported to a designated clearing agency nor captured in a trade reporting system. For example, some OTC odd-lot transactions are not reported to ACT.
The Commission believes that self-reporting is currently the only viable method of capturing certain transactions for purposes of calculating Section 31 fees. However, the Commission
Paragraph (a)(4) of proposed Rule 31 would provide that, for any covered sale included in the data reported in Part III, the charge date would be the trade date. Because a trade included in Part III would occur outside the normal trade reporting processes, a covered SRO would have great difficulty in determining the settlement date for such a trade. Therefore, the Commission believes that the only feasible charge date for these covered sales would be the trade date, as self-reported by SRO members.
For those months in which the Commission is required to adjust the Section 31 fee rate, proposed Form R31 would require covered SROs to report the aggregate dollar amount of covered sales in two parts.
Not every sale of a security is subject to Section 31 fees, and not every transaction in a security future is subject to Section 31 assessments. The statute itself exempts certain sales and round turn transactions, and the Commission has exempted others pursuant to the authority granted to it by paragraph (f) of Section 31.
Paragraphs (a)(11)(i) to (v) would restate exemptions set forth in paragraphs (a) to (e) of existing Rule 31-1.
Currently, one type of security future transaction is exempt from assessments under Section 31: A round turn transaction in a future on a narrow-based security index.
Although the duty to submit proposed Form R31 would lie with the covered SROs, paragraph (b)(4) of proposed Rule 31 also would impose a duty on each designated clearing agency to provide a covered SRO, upon request, with the data in the possession of the designated clearing agency needed by the covered SRO to complete Part I of proposed Form R31.
Paragraph (b)(5) of proposed Rule 31 would provide that a covered SRO shall provide in Part I of Form R31 only the data supplied to it by a designated clearing agency. If a covered SRO were to submit its own data in Part I of the form rather than the data supplied by a designated clearing agency, the covered SRO would be in violation of proposed Rule 31. If a covered SRO did not submit its Form R31 in a timely manner but the delay was caused by a designated clearing agency, the designated clearing agency, rather than the covered SRO, would be in violation of proposed Rule 31.
Because the data of the designated clearing agencies may include exempt sales, the Commission would expect the covered SROs and the designated clearing agencies to collaborate in establishing procedures to filter out such sales before the data are reported on Form R31.
Under paragraph (c)(1) of proposed Rule 31, the amount due from a covered SRO for a billing period, as reflected in its “Section 31 bill,”
Paragraph (c)(3) of proposed Rule 31 would require each covered SRO to pay by the due date the entire amount due for the billing period, as reflected in its Section 31 bill. An SRO that paid an amount different from that stipulated in its Section 31 bill would be in violation of proposed Rule 31.
Whether or not the Commission adopts this proposal, national securities exchanges and national securities associations have an obligation to pay fees and assessments pursuant to Section 31 of the Exchange Act. This obligation for fiscal year 2004 began on September 1, 2003, and the initial billing period concluded on December 31, 2003. The due date for Section 31 fees incurred in that period is March 15, 2004. The second billing period began on January 1, 2004, and will continue until August 31, 2004.
If the Commission adopts this proposal, it would determine the amount of fees and assessments owed by the covered SROs using the new procedure described above for the entire fiscal year 2004 (
Therefore, the Commission is also proposing temporary Rule 31T. Rule 31T would require every covered SRO, within one month of the effective date of proposed Rule 31, to submit to the Commission a Form R31 for each month from September 2003 to the month immediately before the initial month for which Rule 31 would require the SRO to submit a Form R31. For example, if Rule 31 were to become effective in March 2004, temporary Rule 31T would require a covered SRO to make Form R31 submissions for each of the months from September 2003 to February 2004, inclusive. Rule 31 itself would require Form R31 submissions for March 2004 and every month thereafter.
The Commission requests comment on all aspects of the proposal. In particular:
1. Are data of the designated clearing agencies an appropriate source for the aggregate dollar amount of covered sales and the total number of covered round turn transactions occurring on the covered exchanges? If not, is there a more appropriate source for this data?
2. Do the exchanges report to a designated clearing agency every transaction that occurs on the exchange, even if the transaction does not result in a net change of position in any participant account of the clearing agency? Do the clearing agencies have the means to be able to tabulate these transactions? If not, what would be an appropriate means to ensure that these transactions are counted by the Commission under proposed Rule 31?
3. Are there any trades (except for trades reported to a designated clearing agency by a QSR) occurring on a national securities exchange that are reported to a clearing agency on a net basis rather than on a transaction-by-transaction basis? If so, would clearing data still be an appropriate basis for the Commission's calculation of Section 31 fees? If not, what source would be more appropriate?
4. Would data from the consolidated tape or an SRO's trade reporting system be a more feasible or reliable source of all of a covered exchange's covered sales? If so, why? Are there sufficient incentives for market participants to correct data that were incorrectly reported to the consolidated tape?
5. Are ACT and TRACS an appropriate source of data for the aggregate dollar amount of covered OTC sales of equity securities? Should proposed Rule 31 and Form R31 allow the NASD to report all covered sales reported to ACT and TRACS in Part II of proposed Form R31? Would the Commission obtain more accurate information by requiring the NASD to report in Part I all covered sales that the NASD itself reports to NSCC and the remainder in Part II?
6. Should the NASD be required to report and pay Section 31 fees on sales of securities resulting from exercises of physical delivery exchange-traded options? If not, which covered SRO should have that duty? Why?
7. Aside from ex-clearing transactions, are there any types of covered sales occurring on a covered exchange that are not reported to a designated clearing agency? If so, what are they and how frequently do they occur? How could the Commission obtain accurate data about them?
8. Is it appropriate to require the covered SROs to submit data on all of their covered sales even though proposed Rule 31 would require them to obtain data on the majority of those sales from one or more designated clearing agencies? Should the Commission obtain this data directly from the designated clearing agencies?
9. Is it appropriate to require covered exchanges to provide data from their trade reporting systems for trades that are reported by a QSR to NSCC? If not, what would be an appropriate source?
10. The Commission has been informed that the number of ex-clearing trades on the exchanges is extremely small. Is this understanding correct? Would it be appropriate for proposed Rule 31 and Form R31 to include a
11. Is ten business days a reasonable time period to give covered SROs to
12. Are the charge dates proposed by the Commission appropriate? If not, how should the charge dates be determined?
13. Are there additional means to reduce Commission reliance on data self-reported by SRO members?
14. Should the Commission allow covered SROs to request a designated clearing agency to pay Section 31 bills on their behalf? Why or why not?
Section 3(f) of the Exchange Act
The Commission preliminarily believes that proposed Rules 31 and 31T and Form R31 would not have any adverse effect on efficiency, competition, or capital formation. The duty imposed on covered SROs to pay Section 31 fees does not arise from Commission rulemaking, but from the Exchange Act itself. The Commission's proposal would establish a process for calculating and collecting Section 31 fees. The Commission preliminarily believes that proposed Rule 31 would promote efficiency, competition, and capital formation by establishing a transparent process whereby the Commission would calculate and collect Section 31 fees.
The Commission further believes that the proposal would promote efficiency, competition, and capital formation by making more accurate the fee rate adjustments made by the Commission pursuant to paragraph (j) of Section 31.
Commenters are invited to present their views on the proposal's effect on efficiency, competition, and capital formation. Empirical data and other factual support for these views should be provided, if possible.
This proposal contains “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”). Accordingly, the Commission has submitted this proposed rulemaking to the Office of Management and Budget (“OMB”) for review in accordance with 44 U.S.C. 3507 and 5 CFR 1320.11. 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.
Proposed Rules 31 and 31T and Form R31 would require covered SROs to provide the Commission data on all of their covered sales and covered round turn transactions. The proposed form, due on a monthly basis, would consist of three parts. Part I would require each covered exchange to provide the aggregate dollar amount of the covered sales with a charge date in the month of the report that it reported to a designated clearing agency. Part I also would require each covered exchange to provide the total number of covered round turn transactions in security futures having a charge date in the month of the report that it reported to a designated clearing agency. Finally, Part I would require a covered association to provide the aggregate dollar amount of covered sales that: (1) occurred by or through any member of the association; (2) had a charge date in the month of the report; and (3) resulted from the exercise of a physical delivery exchange-traded option. Paragraph (b)(4) of proposed Rule 31 would require the designated clearing agencies to provide the covered SROs, upon request, with the data in their possession needed by the covered SROs to complete proposed Form R31.
Part II would require each covered exchange to provide the aggregate dollar amount of the covered sales having a charge date in that month that it captures in a trade comparison system but does not report to a designated clearing agency. Separate entries would be required for covered sales that: (1) were reported to a designated clearing agency by a QSR; and (2) were ex-clearing transactions. Part II also would require a covered association to provide the aggregate dollar amount of any covered sales that: (1) occurred by or through any member of the association; (2) had a charge date in the month of the report; and (3) that it captures in a trade comparison system—regardless of whether it reported some of those transactions to a designated clearing agency.
Part III would require each covered SRO to provide the aggregate dollar amount of the covered sales that: (1) occurred on the exchange (or, in the case of a covered association, by or through any member of the association otherwise than on a national securities exchange); (2) had a charge date in that month; and (3) it neither captured in a trade comparison system nor reported to a designated clearing agency.
For any month in which the Commission is required to adjust the Section 31 fee rate, a covered SRO would have to separate the data on the aggregate dollar amount of covered sales into two parts. The first part would consist of the aggregate dollar amount of covered sales having a charge date in that month before the date of the fee rate adjustment; the second part would consist of the aggregate dollar amount of covered sales having a charge date on or after the date of the fee rate adjustment.
The Commission would use the information obtained on proposed Form R31 to calculate the fees and assessments owed by each covered SRO
There are currently 12 covered SROs that would be subject to the collection of information requirements of this proposal. In addition, there are currently two entities—NSCC and OCC—that would be designated clearing agencies required by paragraph (b)(4) of proposed Rule 31 to provide the covered SROs with the data in their possession needed by the covered SROs to complete Part I of proposed Form R31. Therefore, there would be 14 respondents in total.
Under proposed Rule 31, each covered SRO would have a duty to provide on proposed Form R31 the aggregate dollar amount of all of its covered sales and the total number of its covered round turn transactions having a charge date in the month of the report. To comply with this collection of information requirement, the covered SROs would incur one-time burdens to develop new systems capabilities and procedures to collect and tabulate the necessary data. The designated clearing agencies also would incur burdens in configuring their systems to enable them to meet their obligations under paragraph (b)(4) of proposed Rule 31.
Currently, the options exchanges and security futures exchanges have arrangements with OCC whereby OCC calculates, collects, and pays all of the Section 31 fees and assessments on behalf of the exchanges. OCC already has procedures, therefore, to prevent exempt sales from being included in the calculation of Section 31 fees. However, OCC makes payments to the Commission in one lump-sum on behalf of these seven exchanges without stipulating the amount being paid on behalf of each exchange. Under proposed Rule 31, OCC would have to provide each options exchange with the aggregate dollar amount of its covered sales in options and each security futures exchange with the total number of its covered round turn transactions in security futures. Therefore, OCC would need to develop procedures to allocate each covered sale or covered round turn transaction to a specific exchange. Based on conversations between Commission staff and OCC, the Commission preliminarily estimates this development time to be 180 staff hours.
In light of the fact that all covered sales in options and covered round turn transactions in security futures are cleared and settled by OCC, and that OCC would bear the primary burden for making systems changes to accommodate the proposal, the Commission preliminarily believes that the initial development burden on the five options exchanges and two security futures exchanges would be minimal. The Commission preliminarily estimates that the total initial burden on these seven exchanges would be 10 staff hours per exchange for a total of 70 hours (7 exchanges × 10 hours/exchange). Thus, the Commission preliminarily concludes that OCC, the options exchanges, and the security futures exchanges together would incur burdens for initial development of new systems and processes of 250 staff hours (180 + 70).
NSCC does not currently perform any functions with respect to Section 31. Therefore, NSCC is likely to incur more initial development burdens than OCC. To provide the data to the covered SROs required by the proposal, NSCC would need to configure its systems to accurately tabulate the aggregate dollar amount of covered sales forwarded to it by the equities exchanges. Such configuration would include, among other things, handling reversals appropriately to avoid double-counting of the same transaction, designing a method to filter exempt sales out of the clearing data, ensuring that covered sales that result in no net change of position in any NSCC account are still tabulated, and presenting the data to the covered SROs in a manner that can be easily reported on proposed Form R31.
Based on conversations between Commission staff and the proposed respondents, the Commission preliminarily estimates that NSCC and the eight exchanges that trade equities would collectively incur an aggregate burden of 1000 staff hours to develop new systems and processes to fulfill their obligations under proposed Rule 31.
The NASD would be the only covered association that would be required to report on proposed Form R31 covered sales occurring otherwise than on a national securities exchange. Under the current arrangements for the payment of Section 31 fees, the NASD calculates the aggregate dollar amount of sales reported to ACT after filtering out sales that are exempt from Section 31 fees. The NASD also administers a paper-based system whereby NASD members report and pay fees on odd-lot sales as well as sales of securities resulting from the exercise of non-exchange-listed options, neither of which are reported to ACT. The Commission anticipates that these NASD procedures would continue unchanged under the proposal. In addition, however, the proposal would require the NASD to tabulate and report all of the covered sales occurring in the ADF, although TRACS, the trade reporting system for the ADF, currently is not configured to provide such data. Finally, the proposal would require the NASD for the first time to report and pay Section 31 fees on covered sales resulting from exercises of physical delivery exchange-traded options.
Based on conversations between Commission staff and the NASD, the Commission preliminarily estimates that the necessary configurations to TRACS would require 50 hours of NASD staff time. In addition, the Commission preliminarily believes it would require 25 hours of OCC and NASD staff time to develop a process whereby OCC would convey, and the NASD would receive and report on its Form R31, data on covered sales resulting from exercises of physical delivery exchange-traded options. This burden estimate does not include any time spent by OCC in compiling this data, because OCC already does so in levying and paying to the Commission Section 31 fees on behalf of the options exchanges collectively. Thus, the estimate of 25 burden hours includes only the burden of developing a process for conveying that data in a regular and reliable manner to the NASD. Finally, in light of the NASD's existing processes to pass Section 31 fees to its members based on transaction volume (as reflected in ACT) and to collect data on sales of certain securities self-reported by its members, the Commission preliminarily estimates that it would require only 15 staff hours to adapt to these processes to the requirements of the proposal.
In sum, the Commission preliminarily estimates that the initial development burden on the NASD and OCC to comply with the proposal would be 80 staff hours (50 + 25 + 15).
In sum, the Commission preliminarily believes that the 14 respondents to the proposed collection of information
On an ongoing basis, covered SROs would be required to submit to the Commission proposed Form R31 within ten business days after the end of every month. Proposed Rule 31 would require a designated clearing agencies to furnish to the covered SROs the data in its possession needed by the SROs to complete Part I of proposed Form R31.
Presently, NSCC clears transactions occurring on eight national securities exchanges and OCC clears transactions occurring on seven exchanges.
In addition, the Commission anticipates that proposed Rule 31 would impose additional financial resource burdens on NSCC. These resources would be needed to provide, among other things, CPU time, data storage, power, and systems maintenance. Based on conversations between Commission staff and NSCC, the Commission preliminarily estimates that this burden would be $1000 per month.
The covered exchanges themselves also would incur burdens in fulfilling the requirement imposed by paragraph (b) of proposed Rule 31 to complete and submit to the Commission proposed Form R31 on a monthly basis. The Commission believes that an exchange's burden would increase slightly if it trades both equities and options, since the exchange would have to coordinate inputs from both NSCC and OCC. Furthermore, the Commission believes that an exchange that trades only options or security futures would incur slightly less burden than an exchange that trades only equities, because all data on covered sales of options should be obtainable from OCC and reported in Part I of proposed Form R31. By contrast, a covered exchange that trades equities is more likely to have covered sales for which it would have to rely on sources other than a designated clearing agency and that must be reported in Parts II or III. Thus, the Commission preliminarily estimates that the ongoing monthly burden for the covered exchanges to complete and submit to the Commission proposed Form R31 would be as follows:
• two exchanges that trade only security futures and one exchange that trades only options: 0.5 hours/form
• four exchanges that trade only equities: 1.0 hours/form
• four exchanges that trade both equities and options: 1.5 hours/form
Thus, the Commission preliminarily concludes that covered exchanges would incur a total of 11.5 burden hours—(3 OCC-only exchanges × 0.5 hour/exchange = 1.5 hours) + (4 NSCC-only exchanges × 1.0 hour/exchange = 4.0 hours) + (4 dual exchanges × 1.5 hours/exchange = 6 hours)—to complete the Form R31 submissions required in a given month.
The Commission preliminarily estimates that one covered association, the NASD, would incur a monthly burden of 1 staff hour to receive, confirm, and report in Part I of proposed Form R31 the data provided to it by OCC on the aggregate dollar amount of covered sales having a charge date in the month of the report resulting from exercises of physical delivery exchange-traded options. Furthermore, the Commission preliminarily estimates that 2 NASD staff hours would be required to produce monthly reports from ACT and TRACS of all covered sales having a charge date in that month and to record those data on proposed Form R31. Finally, the Commission preliminarily estimates that 1 NASD staff hour would be required to aggregate and record in Part III of proposed Form R31 data on covered sales that are self-reported by NASD members. The Commission preliminarily concludes that the monthly burden imposed on the NASD by proposal would be 4 staff hours (1 + 2 + 1).
In summary, the Commission preliminarily believes that the total burden on the 14 respondents for completing Form R31 for a single month would be 22.5 staff hours (7 hours for two designated clearing agencies + 11.5 hours for 11 covered exchanges + 4 hours for one covered association), or 270 staff hours per year (22.5 hours/month × 12 months). In addition, the Commission preliminarily believes that one designated clearing agency, NSCC, would incur additional financial burdens of $1000 per month or $12,000 per year.
Proposed temporary Rule 31T would require every covered SRO, within one month of the effective date of proposed Rule 31, to submit to the Commission a Form R31 for each of the months September 2003 to the month that Rule 31 becomes effective. This would enable the Commission to obtain data on all covered sales and covered round turn transactions occurring in fiscal year 2004, regardless of the effective date of proposed Rule 31. The Commission notes that national securities exchanges and national securities associations have a duty to pay fees and assessments pursuant to Section 31 regardless of whether the Commission adopts this proposal.
The Commission preliminarily estimates that, if the proposal is adopted, temporary Rule 31T would require each covered SRO to provide six additional Form R31 submissions. In Section V(D)(2)(d) above, the Commission estimated that the total burden on the 14 respondents to complete one month's worth of Form R31 submissions would be 22.5 staff hours. Therefore, the Commission estimates that proposed Rule 31T would impose a total burden of 135 staff hours (6 forms × 22.5 hours/form) on the 14 respondents.
• evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information has practical utility;
• evaluate the accuracy of the Commission's estimates of the burden of the proposed collection of information;
• determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected;
• evaluate whether there are ways to minimize the burden of the collection of information on the respondents, including through the use of automated collection techniques or other forms of information technology; and
• evaluate whether the proposed amendments would have any effect on any other collection of information not previously identified in this section.
Any member of the public may direct to the Commission any comments concerning the accuracy of these burden estimates and any suggestions for reducing the burdens. Persons who desire to submit comments on the collection of information requirements should direct their comments to the OMB; Attention: Desk Officer for the Securities and Exchange Commission; Office of Information and Regulatory Affairs; Washington, DC 20503; and send a copy of the comments to Jonathan G. Katz; Secretary; Securities and Exchange Commission; 450 Fifth Street, NW.; Washington, DC 20549-0609, with reference to File No. S7-05-04. Requests for materials submitted to the OMB by the Commission with regard to these collections of information should be in writing, refer to File No. S7-05-04, and be submitted to the Securities and Exchange Commission; Records Management; Office of Filings and Information Services; 450 Fifth Street, NW.; Washington, DC 20549. Because the OMB is required to make a decision concerning the collections of information between 30 and 60 days after publication, your comments are best assured of having their full effect if the OMB receives them within 30 days of publication of this notice.
The Commission is considering the costs and benefits of proposed Rules 31 and 31T and Form R31, as described below. The Commission encourages comments that address this analysis, as well as additional costs or benefits that we may not have considered. Empirical data and other factual support should be provided, if possible.
Proposed Rule 31 and Form R31 would require covered SROs to provide the Commission on a monthly basis data on their covered sales and covered round turn transactions. Proposed temporary Rule 31T would require covered SROs to provide the Commission with Form R31 submissions for the months of September 2003 until the month that Rule 31 becomes effective. As discussed above in Section V, the proposal would cause the covered SROs and designated clearing agencies to incur certain paperwork costs in tabulating and reporting to the Commission the data required by Form R31. The Commission preliminarily estimates that the covered SROs and designated clearing agencies would incur a burden of 1330 staff hours of initial development costs, 270 staff hours per year to submit proposed Form R31 on a monthly basis, and 135 staff hours to comply with proposed temporary Rule 31T. The Commission also preliminarily estimates that one designated clearing agency, NSCC, would incur a monthly financial cost of $1000 for systems maintenance to comply with proposed Rule 31.
In addition, the Commission believes that certain covered SROs may incur additional costs to develop new methods for allocating Section 31 fees among their members if the Commission adopts proposed Rule 31. Currently, the covered SROs generate the funds to pay Section 31 fees to the Commission by passing these fees on to their members. The NYSE and Amex require their members to self-report the aggregate dollar amount of their sales of securities and the corresponding Section 31 fees due based on that amount. Every other equities exchanges imposes fees on their members based on the sales of securities that the exchange reports to the consolidated tape. If the Commission adopts a rule that would base the calculation of Section 31 fees largely on clearing data, either or both of the existing methods for allocating Section 31 fees among members of the equities exchanges could yield an amount that differs from that calculated by the Commission pursuant to proposed Rule 31.
Therefore, a covered exchange might wish to develop new procedures to subdivide Section 31 fees among its members if the proposal is adopted. Paragraph (b)(4) of proposed Rule 31 would require a designated clearing agency to provide covered SROs, upon request, with the data in its possession needed by the SROs to complete Part I of Form R31. A covered SRO could also request that the designated clearing agency subdivide the data by SRO member so that the SRO could impose fees on each member for these covered sales or covered round turn transactions. While subdividing the data in this manner would not be required by proposed Rule 31, the Commission anticipates that covered SROs may elect to establish such processes so that they collect from their members only the precise amount that the Commission bills them under proposed Rule 31. A covered SRO that wishes to establish a new procedure for dividing its Section 31 fees among its members might be required to propose a rule change pursuant to Section 19(b) of the Exchange Act
The Commission notes that this proposal would not impose new costs on covered SROs in the form of higher Section 31 fees. The rate at which an SRO incurs liability to the Commission for covered sales and covered round turn transactions is set by the statute; the proposal would merely establish a procedure for the Commission to obtain a reliable measure of the aggregate dollar amount of covered sales and the total number of covered round turn transactions and, using that information, to calculate the appropriate amount of fees and assessments due from each covered SRO pursuant to Section 31.
A primary benefit of this proposal is that the means by which the Commission derives a large source of its revenue would become more transparent and more easily subject to verification. The Commission believes that the proposal would allow it to obtain the most complete and reliable data available on the aggregate dollar amount of covered sales and total number of covered round turn transactions occurring in the U.S. securities markets. This data would be provided on a simple and easy-to-use form. The Commission believes that requiring the data to be reported in this manner would greatly facilitate an auditor's understanding of the source and calculation of the Section 31 fee receivables on the Commission's financial statements. The Commission further believes that the public interest benefits when the Commission can demonstrate that it is collecting the correct amount of Section 31 fees and properly carrying out the fiscal responsibilities assigned to it by Congress.
A related benefit of this proposal is that the fee rate adjustments made by
The Commission requests comments on how any aspect of the proposal would create benefits or impose costs on market participants. In particular:
• Would covered SROs have to propose rule changes to implement new procedures for allocating Section 31 fees among their members? How much would it cost to submit such a filing pursuant to Section 19(b) of the Exchange Act?
• Are there other ways in which the Commission could carry out the Section 31 fee collection process in a manner consistent with generally accepted accounting principles as they apply to federal agencies?
• Are there other costs or benefits to this proposal?
• Do the benefits justify the costs?
The Commission hereby certifies, pursuant to the Regulatory Flexibility Act (“RFA”),
The Commission requests written comments regarding this certification. The Commission requests that commenters describe the nature of any impact on small businesses and provide empirical data to support the extent of the impact.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996,
• An annual effect on the economy of $100 million or more;
• A major increase in costs or prices for consumers or individual industries; or
• Significant adverse effects on competition, investment, or innovation.
The Commission requests comment on the potential impact of the proposal on the economy on an annual basis. Empirical data and other factual support should be provided, if possible.
Proposed Rules 31 and 31T under the Exchange Act would be adopted pursuant to 15 U.S.C. 78a
Reporting and recordkeeping requirements, Securities.
For the reasons set out in the preamble, the Commission proposes to amend title 17, chapter II of the Code of Federal Regulations as follows:
1. The authority citation for part 240 continues to read in part as follows:
15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78
2. Section 240.31-1 is revised to read as follows:
(a)
(1)
(2)
(i) January 1 to the close of August 31 (“billing period 1”); or
(ii) September 1 to the close of December 31 (“billing period 2”).
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(i) March 15, with respect to the amounts owed by covered SROs under section 31 of the Act (15 U.S.C. 78ee) for covered sales and covered round turn transactions having a charge date in billing period 2; and
(ii) September 30, with respect to the amounts owed by covered SROs under section 31 of the Act (15 U.S.C. 78ee) for covered sales and covered round turn transactions having a charge date in billing period 1.
(11)
(i) Any sale of a security offered pursuant to an effective registration statement under the Securities Act of 1933 (except a sale of a put or call option issued by the Options Clearing Corporation) or offered in accordance with an exemption from registration afforded by section 3(a) or 3(b) of the Securities Act of 1933 (15 U.S.C. 77c(a) or 77c(b)), or a rule thereunder;
(ii) Any sale of a security by an issuer not involving any public offering within the meaning of section 4(2) of the Securities Act of 1933 (15 U.S.C. 77d(2));
(iii) Any sale of a security pursuant to and in consummation of a tender or exchange offer;
(iv) Any sale of a security upon the exercise of a warrant or right (except a put or call), or upon the conversion of a convertible security;
(v) Any sale of a security that is executed outside the United States and is not reported, or required to be reported, to a transaction reporting association as defined in § 240.11Aa3-1 and any approved plan filed thereunder;
(vi) Any sale of an option on a security index (including both a narrow-based security index and a non-narrow-based security index); and
(vii) Any sale of a bond, debenture, or other evidence of indebtedness.
(12)
(13)
(14)
(15)
(16)
(17)
(b)
(2) A covered exchange shall provide on Form R31 the following data on covered sales and covered round turn transactions occurring on that exchange that have a charge date in that month:
(i) The aggregate dollar amount of covered sales that it reported to a designated clearing agency, as reflected in the data provided by the designated clearing agency;
(ii) The aggregate dollar amount of covered sales that it captured in a trade reporting system but did not report to a designated clearing agency;
(iii) The aggregate dollar amount of covered sales that it neither captured in a trade reporting system nor reported to a designated clearing agency; and
(iv) The total number of covered round turn transactions that it reported to a designated clearing agency, as reflected in the data provided by the designated clearing agency.
(3) A covered association shall provide on Form R31 the following data on covered sales and covered round turn transactions occurring by or through any member of such association otherwise than on a national securities exchange that have a charge date in that month:
(i) The aggregate dollar amount of covered sales resulting from the exercise of a physical delivery exchange-traded option, as reflected in the data provided by a designated clearing agency;
(ii) The aggregate dollar amount of covered sales that it captured in a trade comparison system;
(iii) The aggregate dollar amount of covered sales that it did not capture in a trade comparison system; and
(iv) The total number of covered round turn transactions that it reported to a designated clearing agency, as reflected in the data provided by the designated clearing agency.
(4) A designated clearing agency shall provide a covered SRO, upon request, the data in its possession needed by the covered SRO to complete Part I of Form R31.
(5) A covered SRO shall provide in Part I of Form R31 only the data supplied to it by a designated clearing agency.
(c)
(2) The monthly amount due from a covered SRO shall equal:
(i) The aggregate dollar amount of its covered sales that have a charge date in that month, times the fee rate; plus
(ii) The total number of its covered round turn transactions that have a charge date in that month, times the assessment charge.
(3) By the due date, each covered SRO shall pay the Commission the entire amount due for the billing period, as reflected in its Section 31 bill.
3. Section 240.31T is added to read as follows:
(a) Within one month of the effective date of § 240.31, each covered SRO shall submit to the Commission a completed Form R31 (§ 249.11 of this chapter) for each of the months September 2003 to the month immediately before the month that § 240.31 became effective, inclusive.
(b) This temporary section shall expire [six months after the effective date of § 240.31].
4. The authority citation for part 249 continues to read in part as follows:
15 U.S.C. 78a
5. Section 249.11 and Form R31 (referenced in § 249.11) are added to read as follows:
This form shall be used by each national securities exchange to report to the Commission within ten business days after the end of every month the aggregate dollar amount of sales of securities that occurred on the exchange, had a charge date in the month of the report, and are subject to fees pursuant to section 31(b) of the Act (15 U.S.C. 78ee) and § 240.31 of this chapter; and the total number of round turn transactions in security futures that occurred on the exchange, had a charge date in the month of the report, and are subject to assessments pursuant to section 31(d) of the Act and § 240.31 of this chapter. This form also shall be used by a national securities association to report to the Commission within ten business days after the end of every month the aggregate dollar amount of sales or securities that occurred by or through a member of the association otherwise than on a national securities exchange, had a charge date in the month of the report, and are subject to fees pursuant to section 31(c) of the Act and § 240.31 of this chapter; and the total number of round turn transactions in security futures that occurred by or through any member of the association otherwise than on a national securities exchange, had a charge date in the month of the report, and are subject to assessments pursuant to section 31(d) of the Act and § 240.31 of this chapter.
The text of Form R31 does not, and this amendment will not, appear in the Code of Federal Regulations.
By the Commission.
Securities and Exchange Commission.
Proposed rule.
The Commission is proposing for comment a new rule and related rule amendments under the Investment Advisers Act of 1940 that would require registered advisers to adopt codes of ethics. The codes of ethics would set forth standards of conduct expected of advisory personnel, safeguard material nonpublic information about client transactions, and address conflicts that arise from personal trading by advisory personnel. Among other things, the rule would require advisers' supervised persons to report their personal securities transactions, including transactions in any mutual fund managed by the adviser. The rule and rule amendments are designed to promote compliance with fiduciary standards by advisers and their personnel.
Comments must be received on or before March 15, 2004.
To help us process and review your comments more efficiently, comments should be sent by hard copy or e-mail, but not by both methods.
Comments sent by hardcopy should be submitted in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Comments may instead be submitted electronically at the following e-mail address:
Robert L. Tuleya, Attorney-Adviser, or Jennifer Sawin, Assistant Director, at 202-942-0719, Office of Investment Adviser Regulation, Division of Investment Management, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0506.
The Securities and Exchange Commission (“Commission” or “SEC”) is requesting public comment on proposed rule 204A-1 [17 CFR 275.204A-1] under the Investment Advisers Act of 1940 [15 U.S.C. 80b] (“Advisers Act” or “Act”) and proposed amendments to rule 204-2 [17 CFR 275.204-2] and Form ADV [17 CFR 279.1] under the Advisers Act and to rule 17j-1 [17 CFR 270.17j-1] under the Investment Company Act of 1940 [15 U.S.C. 80a] (“Company Act”).
Advisers are fiduciaries that owe their clients a duty of undivided loyalty.
In order to educate their employees, protect the reputation of the firm, and guard against violating the securities laws, many advisers have adopted codes of ethics, establishing standards of conduct to which their employees must adhere. Codes of ethics often remind employees that they are in a position of trust, which requires them to act at all
Recently we adopted rules designed to deter and detect violations of the Act,
The Commission is proposing for comment new rule 204A-1, and related rule amendments, that would require advisers to adopt codes of ethics. Each adviser's code of ethics would be required to (i) set forth standards of conduct expected of advisory personnel (including compliance with the federal securities laws), (ii) safeguard material nonpublic information about client transactions, and (iii) require advisers' “access persons” to report their personal securities transactions, including transactions in any mutual fund managed by the adviser. The code of ethics would also have to require access persons to obtain the adviser's approval before investing in an initial public offering (“IPO”) or private placement. The code of ethics would have to require prompt reporting, to the adviser's chief compliance officer or another person designated in the code of ethics, of any violations of the code.
The rule would apply to each adviser registered with the Commission, although as we discuss below firms with only one employee would be exempt from some provisions.
The proposed rule, would not, of course, preclude an adviser from adopting a code of ethics covering additional matters. We encourage advisers to adopt broader codes, and request comment on whether we should require advisers to adopt them. What matters should they address?
We propose that each code of ethics set forth a standard of business conduct that the adviser requires of all its supervised persons.
We request comment on these requirements. Is our formulation of the business conduct element of the code of ethics appropriate? Should we specify a particular standard of conduct that all codes of ethics must incorporate? What standard should we adopt? Should the code of ethics require supervised persons to comply with all applicable laws and regulations, rather than only the federal securities laws?
Tight controls on access to sensitive client information are a first line of defense against misuse of that information.
• Are these criteria adequate? Are there alternative formulations we should use?
• Some advisers' codes of ethics require that computer files containing nonpublic information be identified and segregated. Should we require all
• Advisers' required procedures under section 204A usually contain a summary of the law on insider trading and procedures for determining whether information has become public. Should we require these to be integrated into the code of ethics?
Investment advisers and their personnel face inherent conflicts of interest when they trade in securities for their own accounts. They have access to information about their clients' securities transactions, which they can exploit for their own benefit.
Misuse of client information violates the adviser's fiduciary duty as well as the Act's prohibitions against fraud and other provisions of the federal securities laws that prohibit insider trading.
To prevent the personal securities trading of advisers' personnel from harming clients, each adviser's code of ethics would have to require personal trading reports from “access persons” of the adviser. The rule would, however, contain an exception for an adviser with only one employee (
• Are there other advisers we should exempt from provisions of the rule?
Our proposed requirements for reporting of personal securities trading are modeled largely on rule 17j-1 under the Company Act, which we adopted in 1980.
We have also required advisers registered with us to keep records of transactions in which the firm or certain personnel have a beneficial ownership interest. Advisers Act rule 204-2(a)(12) and (13). As discussed in more detail below, we propose to modify these recordkeeping rules.
We have, however, made a number of changes to better apply the provisions on personal securities reporting to the many smaller advisory firms registered with us that do not advise an investment company. Appendix A to this Release contains a table comparing our proposal with rule 17j-1. We request comment on whether the differences, the most significant of which we describe below, make sense. Are there provisions in rule 17j-1 that we have omitted from proposed rule 204A-1 but that should be included? Conversely, are there changes we are proposing that should be extended to rule 17j-1? Is there a significant need for rule 204A-1 and rule 17j-1 to be as uniform as possible—in the event we adopt rule 204A-1 with changes from this proposal, should we make parallel changes to rule 17j-1?
The code of ethics would have to require the adviser's “access persons”—generally, its personnel who have access to nonpublic information regarding client securities recommendations, trading and holdings—to periodically report their personal securities transactions and holdings to the adviser's chief compliance officer.
In order to give advisers flexibility to adopt codes appropriate for their businesses, we are not proposing specific provisions regarding personal trading, other than pre-clearance of certain investments as discussed below. Firms that have already adopted a code of ethics, however, commonly include many of the following elements, or address the following issues, which we believe all advisers should consider in crafting their own procedures for employees' personal securities trading.
• Prior written approval before access persons can place a personal securities transaction (“pre-clearance”).
Pre-clearance procedures may also identify who has authority to approve a trade request, the length of time an approval is valid, and procedures for revoking an approval, as well as procedures for verifying post-trade reports or duplicate
• Maintenance of “restricted lists” of issuers of securities that the advisory firm is analyzing or recommending for client transactions, and prohibitions on personal trading in securities of those issuers.
• “Blackout periods” when client securities trades are being placed or recommendations are being made and access persons are not permitted to place personal securities transactions.
• Reminders that investment opportunities must be offered first to clients before the adviser or its employees may act on them, and procedures to implement this principle.
• Prohibitions or restrictions on “short-swing” trading and market timing.
• Requirements to trade only through certain brokers, or limitations on the number of brokerage accounts permitted.
• Requirements to provide the adviser with duplicate trade confirmations and account statements.
• Procedures for assigning new securities analyses to employees whose personal holdings do not present apparent conflicts of interest.
We request comment on whether the rule should require that any of the above “best practice” procedures regarding personal securities trading be in advisers” codes of ethics.
• Are there other common elements or procedures, in addition to the above, that all advisers should consider as best practices, and, if so, should we include these in our adopting release? Commenters favoring additional policies and procedures should give specific recommendations.
• Should advisers be required to document the factors they considered in developing their procedures?
Under proposed rule 204A-1, the adviser's code must require certain supervised persons, called “access persons,” to report their personal securities transactions and holdings.
Access persons would include portfolio management personnel.
Persons who are not “supervised persons” of the investment adviser would not be access persons under the proposed rule. Thus, employees of other organizations, including affiliated organizations such as broker-dealers, custodians, and banks that may acquire information about client securities transactions in the course of their duties, would not be subject to reporting requirements.
We request comment on the scope of the definition of access person under the proposed rule:
• Is the definition too broad? Are there additional persons who should be excluded?
• Is the definition too narrow “ are there personnel at advisory firms who would not be access persons but who may be in a position to misuse nonpublic information?
• Should access persons include employees of companies that control or are controlled by the adviser?
Whether directors and partners of an adviser have access to client securities information may vary significantly between organizations. In some large organizations with multiple lines of business, not all officers may have access to the type of information the proposed rule is designed to protect. Rule 17j-1 creates special rules for advisory firms that are “primarily engaged” in a business other than advising funds or advisory clients, and sets out a test based on the firm's sources of revenue.
• Is there a continuing need for the rule to specify a test for the adviser's “primary” business? If so, should the new rule use the revenue-based test currently in rule 17j-1 or is there another measure that would be more effective?
• Should we amend rule 17j-1 to create a legal presumption rather than using the current revenue-based test?
Several types of securities would appear to present little opportunity for the type of improper trading that the access person reports are designed to uncover. Money market instruments “ bankers” acceptances, bank certificates of deposit, commercial paper, repurchase agreements and other high quality short-term debt instruments—and direct obligations of the Government of the United States would be exempt from reporting requirements.
• Are there other types of mutual funds, in addition to money market funds, that we should exempt from access persons' holdings and transactions reporting requirements—for example, should reporting on transactions in index funds be required? Should investments in variable annuity contracts be excluded from reporting requirements?
Access persons would be required to report holdings and transactions in securities in which they have beneficial ownership. In 1999, we clarified that beneficial ownership under rule 17j-1 should be interpreted in the same manner as for purposes of rule 16a-1(a)(2) under the Securities Exchange Act of 1934 in determining whether a person has beneficial ownership of a security for purposes of section 16 of that Act.
Proposed rule 204A-1 would require access persons of an adviser to report their holdings and transactions in shares of investment companies managed by the adviser or a control affiliate (“reportable funds”).
Section 17(j) of the Company Act authorizes us to adopt rules preventing fraud or deceptive practices in connection with the purchase or sale of “any security held or to be acquired” by an investment company. As a result, rule 17j-1 does not require access persons of investment companies to report personal securities trades in mutual funds they manage. Moreover, the exclusion of mutual funds reflects an assumption that trading in mutual fund shares posed little risk of abuse, because those shares are priced at net asset value daily.
Our enforcement actions against fund managers who we allege to have engaged in market timing of their funds based upon their knowledge that portfolio securities were mispriced indicates that this assumption was false.
• Should the proposed rule require reporting of transactions and holdings in all mutual fund shares, rather than only affiliated funds? Does the proposed rule draw an appropriate line regarding which funds should be covered, and if not, where should that line be drawn?
• Proposed rule 204A-1 would include, as access persons, individuals who obtain information about the existing securities holdings in the adviser's investment companies. Should these individuals be considered access persons? Should we amend rule 17j-1 under the Investment Company Act to conform the definitions?
• Should supervised persons who have information about the holdings of non-fund clients also be included as access persons?
Proposed rule 204A-1 would require a complete report of each access
• Should we require holdings reports to be more frequent?
• If we require holdings reports more often than annually, should we make parallel changes to rule 17j-1?
Proposed rule 204A-1 would require quarterly reports of all personal securities transactions by access persons.
• We request comment on the required timing of these reports.
• If we require more frequent transaction reports or a shorter deadline for reporting, should we make parallel changes to rule 17j-1?
Transactions effected pursuant to an automatic investment plan would not have to be reported.
• Are there other types of transactions that should be exempt from quarterly transactions reports? For example, some advisers that have overall pre-clearance requirements permit employees to purchase securities pursuant to an exercise of rights issued
• Should small transactions be exempt if the issuer has a large market capitalization? If so, what should be the thresholds for the size of the transaction and for the size of the issuer?
• Should transactions pursuant to automatic investment plans, or other types of transactions, also be exempt from quarterly reporting under rule 17j-1?
Many advisory firms already receive copies of their employees' trade confirmations or account statements covering personal securities transactions. Proposed rule 204A-1 would not require access persons to submit transaction reports that would duplicate information contained in trade confirmations or account statements that the adviser holds in its records. A duplicate trade confirmation or account statement would be required to be received by the adviser within 10 days after the end of the quarter in which the transaction takes place.
• The proposed rule does not require all of the information required in a transaction report to appear in the duplicate trade confirmation or account statement. That is, some of the required information could appear in the confirm or statement, and the remainder could appear elsewhere in the adviser's records. Is this clear in the proposed rule, or should the rule contain an express provision on this point? Does this practice fragment the information such that a complete picture of the access person's securities trades is harder to obtain?
The code of ethics would have to require that access persons obtain the adviser's approval before investing in an initial public offering (“IPO”) or private placement.
• Many advisers prohibit their employees from participating in initial public offerings and private placements.
The code of ethics would have to require prompt internal reporting of any violations of the code.
We ask for comment on this provision of the proposals. Should advisers identify at least two persons to whom reports of violations can be submitted, in case one of the designated persons is involved in the violation?
• Should the code of ethics require reporting of apparent violations as well?
The code of ethics would have to require the adviser to provide each supervised person with a copy of the code of ethics and any amendments, and require each supervised person to acknowledge, in writing, his receipt of those copies.
• Advisers' codes of ethics often contain procedures for the firm to educate employees about the code of ethics, including the reporting requirements, and to advise employees periodically of changes made to the code.
• Advisers' codes also often require employees to certify that they have read and understood the code of ethics, and require annual recertification that the employee has re-read, understands and has complied with the code. Should rule 204A-1 expressly impose these requirements?
As discussed above, advisers that have adopted codes of ethics often include a variety of provisions designed to guard against impropriety and conflict, and designed to ensure that the firm can implement the code it has adopted.
• Limitations on acceptance of gifts.
• Limitations on the circumstances under which an access person may serve as a director of a publicly traded company.
• Detailed identification of who is considered an access person within the organization.
• Procedures for the firm and its compliance personnel to review periodically the code of ethics as well as to review reports made pursuant to it.
• Discussion of penalties for violating the code of ethics.
Should any of these be required elements of an adviser's code of ethics?
Proposed rule 204A-1 would require that advisers maintain and enforce the provisions of their codes of ethics.
We are also proposing to amend rule 204-2 under the Advisers Act to reflect the codes of ethics that advisers would adopt under rule 204A-1 and to eliminate details that rule 204A-1 would make unnecessary. As a result, advisers should find it easier to understand and meet their recordkeeping obligations.
Currently, rules 204-2(a)(12) and (13) lay out fairly complex requirements for the information that advisers must keep regarding personal securities transactions.
• We ask comment on whether the proposed recordkeeping requirements are appropriate.
• Should the rule require advisers to keep records of any code of ethics waivers or exemptions they grant to a supervised person?
We propose to require that records of access persons' personal securities reports (and duplicate brokerage confirmations or account statements in lieu of those reports) be maintained electronically in an accessible computer database.
• We ask comment on our understanding that requiring these records to be kept electronically would not be burdensome. Is there a need to exempt some smaller firms from the electronic recordkeeping requirement, or to modify the electronic recordkeeping requirement for these firms?
We are proposing to amend Part II of Form ADV to require advisers to describe their codes of ethics to clients and, upon request, to furnish clients with a copy of the code of ethics.
• Is a general disclosure requirement adequate? Commenters urging that more specific disclosure be required should provide sample text.
Approximately 19 percent of the advisers registered with us advise registered investment companies and are therefore also subject to rule 17j-1. We would not want those advisers to be subject to conflicting responsibilities under that rule and our new proposals.
Currently, access persons under rule 17j-1 need not make a quarterly transaction report under that rule if “all of” the information in the report would duplicate information required to be recorded under Advisers Act rules.
• We ask comment on whether there are alternative approaches to better reconcile this issue.
The Commission requests comment on the rule and amendments proposed in this release, suggestions for other additions to the rule and amendments, and comment on other matters that might have an effect on the proposals contained in this release. For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996, the Commission also requests information regarding the potential impact of the proposed rule and amendments on the economy on an annual basis. Commenters should provide empirical data to support their views.
We are sensitive to the costs and benefits that result from our rules. Proposed rule 204A-1 would require investment advisers to establish, maintain, and enforce codes of ethics for their supervised persons. These codes of ethics would establish standards of business conduct reflecting the fiduciary obligations of the adviser and its personnel and impose measures designed to prevent supervised persons from abusing their access to information about clients' securities transactions. We are also proposing related recordkeeping and client disclosure amendments.
We anticipate that advisory firm clients and the firms themselves would benefit from the proposed rules, though these benefits are difficult to quantify. Codes of ethics under proposed rule 204A-1 would impress upon supervised persons the significance of the fiduciary aspects of their professional responsibilities, formulating these into standards of conduct to which their employers will hold these individuals accountable. Codes of ethics would also be an important part of advisers' efforts to prevent fraudulent personal trading by their supervised persons. As a result, these codes should increase investor protection by forestalling supervised persons from engaging in misconduct that defrauds clients. In addition, requiring advisers to describe their codes of ethics to clients and to furnish copies to clients upon request should put clients in a better position to evaluate whether their advisers' codes of ethics meet their expectations. If a client is not confident that an advisory firm has taken appropriate measures to prevent its personnel from placing their own interests ahead of their clients' interests, the client would be able to seek a different adviser whose measures he approves.
Proposed rule 204A-1 would reinforce existing measures that require investment advisers to guard against employee misconduct. It would go beyond section 204A of the Advisers Act, which focuses on policies and procedures to prevent misuse of material nonpublic information by advisory firm personnel, and expand advisers' policies to address other situations in which such personnel could potentially benefit at the expense of firm clients. It would also go beyond Company Act rule 17j-1, which focuses on fraud in connection with securities held or to be acquired by an investment company advised by an adviser, and expand advisers' policies to address advisory personnel's holdings and transactions in shares of investment companies managed by the adviser. Codes of ethics should also assist advisers in meeting their obligations under Advisers Act rule 206(4)-7 to adopt policies and procedures reasonably designed to prevent their
Proposed rule 204A-1 would benefit investment advisers by diminishing the likelihood their firms will be embroiled in securities violations, Commission enforcement actions, and private litigation. For an adviser, the potential costs associated with a securities law violation may consist of much more than merely the fines or other penalties levied by the Commission or civil liability. The reputation of an adviser may be significantly tarnished, resulting in lost clients. Advisers may be denied eligibility to advise funds.
Our proposal to revise advisers' recordkeeping obligations for personal securities transactions should also benefit investment advisers. The proposed rules are easier to understand than the complex provisions currently contained in Advisers Act rule 204-2(a)(12) and (13). In addition, by requiring investment advisers to maintain information about their access persons' personal securities transactions electronically in an accessible database, we would make it more likely that firms could detect patterns that may indicate abuse. In all but the smallest advisory organizations, it may be impractical to try to identify such patterns by reviewing paper records. The requirement that each access person provide initial and annual holdings reports will allow investment advisers to better monitor conflicts that may arise when an access person participates in investment decisions involving securities the access person holds in his or her portfolio, and to assess whether access persons are filing accurate quarterly transaction reports.
The proposed rules would result in some additional costs for advisers, and advisers may pass these costs along to their clients in the form of advisory fees. However, since advisers are already required to maintain various policies and procedures that would constitute core elements of their codes of ethics, many of these costs are already reflected in fees clients currently pay. Advisers are required to maintain written policies and procedures reasonably designed to prevent the misuse of material nonpublic information under section 204A of the Advisers Act. Also, the approximately 1,500 advisers who advise registered investment companies currently have codes of ethics to prevent their “access persons” from abusing their access to information about the fund's securities trading, pursuant to Company Act rule 17j-1.
Similarly, our proposals to require access persons to report personal securities transactions should cause only minor cost increases. Advisers are already required to maintain records of their advisory representatives' personal securities transactions on a quarterly basis under Advisers Act rule 204-2(a)(12) and (13). The additional reporting required of access persons under our proposed rules “ routine quarterly reports indicating that no transactions were effected, and an annual report of securities holdings “ should impose only minor additional costs. Because most SEC-registered investment advisers have so few employees, we believe the cost of these additional reports will be minor. As of December 2003, 49% of investment advisers registered with us reported that they had five or fewer non-clerical employees, and another 18% reported that they had only six to ten non-clerical employees.
Our proposal to require advisers to maintain information about their access persons' personal securities transactions electronically in an accessible database would be new. However, we do not expect advisers would be required to acquire new computer equipment or software to implement this approach. We understand that all but the smallest firms currently use client portfolio management software platforms that could easily be used by access persons to report their holdings and transactions under proposed rule 204A-1. Smaller firms could also easily require access persons to submit their reports in common electronic spreadsheet formats.
We expect only minor cost increases from our proposals to require access persons to obtain their advisers' approval before investing in an initial public offering or private placement. Our experience administering the same requirement under Company Act rule 17j-1 has been that such proposals are infrequent, even at larger advisory firms.
Finally, we expect only minor cost increases from our proposal to require advisers to describe their codes of ethics to clients and provide copies on request. Advisers would include the description in the disclosure brochure they are already required to provide to clients. The description should be sufficient for most clients, and it should not impose substantial costs to provide a copy of the code of ethics to the few clients that request it.
We request comment on the potential costs and benefits identified in the proposal and any other costs or benefits that may result from the proposed rules. Commenters are requested to identify, discuss, analyze, and supply relevant data to support their views.
Section 202(c) of the Advisers Act [15 U.S.C. 80b-2(c)] mandates that the Commission, when engaging in rulemaking that requires it to consider or determine whether an action is necessary or appropriate in the public interest, to consider, in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation.
As discussed above, the proposed rule would require investment advisers to
Since the proposed rule would apply equally to all registered advisers, we do not anticipate that it would introduce any competitive disadvantages. We expect that the proposed rule may indirectly foster capital formation by bolstering investor confidence. To the extent that investors know that advisory firms have taken measures designed to prevent their supervised persons from placing their interests ahead of their clients' interests, clients are more likely to make assets available through advisers for investment in the capital markets.
The proposed rule and amendments contain “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995.
The collection of information under rule 204A-1 is necessary to establish standards of business conduct for supervised persons of investment advisers and to facilitate investment advisers' efforts to prevent fraudulent personal trading by their supervised persons. The collection of information is mandatory. The respondents are investment advisers registered with us, and certain of their supervised persons who must submit reports of their personal trading activities to their firms. These investment advisers use the information collected to control and assess the personal trading activities of their supervised persons. Responses to the reporting requirements will be kept confidential to the extent each investment adviser provides confidentiality under its particular practices and procedures.
The collection of information under rule 204-2 is necessary for the Commission staff to use in its examination and oversight program. This collection of information is mandatory. The respondents are investment advisers registered with us. Responses provided to the Commission in the context of its examination and oversight program are generally kept confidential.
The collection of information under Form ADV is necessary to provide advisory clients and prospective clients with information about an adviser's code of ethics. This collection of information is mandatory. The respondents are investment advisers registered with us. Clients of these investment advisers use the information collected to assess measures the adviser has taken to prevent its supervised persons from placing their own interests ahead of their clients' interests. Responses to the disclosure requirements are not kept confidential.
Rule 204A-1 would require SEC-registered investment advisers to establish a written code of ethics for their supervised persons. These codes of ethics would establish standards of business conduct reflecting the fiduciary obligations of the adviser and its personnel and impose measures designed to prevent supervised persons from abusing their access to information about clients' securities transactions.
Rule 204A-1 would also require each adviser's code of ethics to include provisions under which the adviser's “access persons” report their personal securities transactions and holdings to the adviser.
These access persons would be required to file an initial report of their personal securities holdings upon becoming access persons, and an annual holdings report at least once a year thereafter.
Rule 204A-1 would also require each adviser's code of ethics to include provisions under which the adviser provides each supervised person with a copy of the code of ethics and any amendments, and obtains written acknowledgment of receipt from the supervised person. We estimate that each investment adviser has 100 supervised persons on average, although this estimate overstates the number of supervised persons at the majority of advisory firms.
Based on these estimates, the total annual burden for advisers and access persons under proposed rule 204A-1 would be 945,841.25 hours.
In addition, the proposal would amend rule 204-2, the adviser recordkeeping rule. The currently-approved annual aggregate information collection burden under rule 204-2 is 1,651,324.2 hours. This approved annual aggregate burden was based on estimates that 7,790 advisers were subject to the rule, and each of these advisers spends an average of 211.98 hours preparing and preserving records in accordance with the rule. Based upon the most recently available data, there are 8,019 registered investment advisers. The increase in the number of registered investment advisers increases the total burden hours of current rule 204-2 from 1,651,324.2 to 1,699,867.6 hours.
The proposed amendments would reduce the burden of collection under rule 204-2. The 211.98 hour burden estimate for the currently-approved collection includes a requirement that investment advisers retain records relating to the personal securities transactions of “advisory representatives.”
The proposed amendments to rule 204-2 would also increase the types of information collected under the rule. We estimate these new collections would increase the annual burden by 5 hours on average, to 191.78 hours. Advisers would be required to retain the personal securities holdings and transaction information submitted by their access persons under proposed rule 204A-1 and maintain it electronically in an accessible
Accordingly, we estimate the proposed changes to rule 204-2 would decrease the annual aggregate information collection burden under the rule by 161,983.8 hours, from 1,699,867.6 hours to 1,537,883.8 hours.
The proposal would also amend Part II of Form ADV, which specifies certain information investment advisers must disclose to their clients.
We request comment whether these estimates are reasonable. Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits comments to:
• evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility;
• evaluate the accuracy of the Commission's estimate of the burden of the proposed collections of information;
• determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected; and
• determine whether there are ways to minimize the burden of the collections of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology.
Persons wishing to submit comments on the collection of information requirements should direct them to the Office of Management and Budget, Attention: Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Room 3208, Washington, DC 20503, and also should send a copy to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609 with reference to File No. S7-04-04. OMB is required to make a decision concerning the collections of information between 30 and 60 days after publication, so a comment to OMB is best assured of having its full effect if OMB receives the comment within 30 days after publication of this release. Requests for materials submitted to OMB by the Commission with regard to these collections of information should be in writing, refer to File No. S7-04-04, and be submitted to the Securities and Exchange Commission, Records Management, Office of Filings and Information Services, 450 Fifth Street, NW., Washington, DC 20549.
The Commission has prepared the following Initial Regulatory Flexibility Analysis (“IRFA”) in accordance with section 3(a) of the Regulatory Flexibility Act.
Section I of this Release describes the background and reasons for the proposed new rule and rule amendments. As we discussed in detail above, these proposals are designed to promote compliance with fiduciary standards by advisers and their personnel.
Section II of this Release discusses the objectives of the proposed new rule and rule amendments. As we discuss in detail above, these objectives include requiring SEC-registered investment advisers to adopt codes of ethics for their supervised persons, requiring advisers to retain certain records relating to their codes of ethics, and requiring advisers to disclose information about their codes of ethics to clients. Section VIII of this Release lists the statutory authority for the proposed new rule and rule amendments.
The proposed new rules and rule amendments under the Advisers Act would govern all advisers registered with the Commission, (and the amendments to rule 17j-1 would govern all investment companies,) including small entities. Under Commission rules, for purposes of the Regulatory Flexibility Act, an investment adviser generally is a small entity if it: (i) has assets under management having a total value of less than $25 million; (ii) did not have total assets of $5 million or more on the last day of its most recent fiscal year; and (iii) does not control, is not controlled by, and is not under common control with another investment adviser that has assets under management of $25 million or more, or any person (other than a natural person) that had $5 million or more on the last day of its most recent fiscal year.
For purposes of the Regulatory Flexibility Act, a registered investment company (“fund”) is a small business or small organization (collectively, “small entity”) if the fund, together with other funds in the same group of related investment companies, has net assets of $50 million or less as of the end of its most recent fiscal year.
The proposed amendment to Form ADV would impose a new reporting requirement on advisers, requiring that they make an additional disclosure statement in their brochures describing their codes of ethics and noting that copies of the codes are available from the adviser upon request. Although the proposed rule and rule amendments would impose no other new reporting requirements on registered advisers themselves, proposed rule 204A-1 would require that advisers' codes of ethics impose a new reporting requirement on advisers' access persons by requiring certain new personal securities holdings and transaction reports. The proposed rule and rule amendments would also create certain new recordkeeping and compliance requirements. The proposed rule amendments would impose new recordkeeping requirements by requiring that advisers maintain certain records pertaining to their codes of ethics and requirements of such codes (including records of personal securities holdings and transaction reports).
Small entities registered with the Commission as investment advisers would for the most part be subject to these new reporting, recordkeeping and compliance requirements to the same extent larger advisers would be. With regard to reporting of securities holdings and transactions and to pre-approvals of certain investments, however, certain small advisers, possibly including some that are small entities, would not be subject to the new requirements. Additionally, we anticipate that most advisers would very rarely need to address violations to their codes of ethics and, similarly, should infrequently be asked by an access person to consider pre-approval of an investment in an IPO or limited offering. Small advisers would likely deal with violations or IPO and limited offering pre-approvals on an even more limited scale due to the smaller size of their operations. Furthermore, it is important to note that some of the proposed reporting, recordkeeping and compliance requirements replace, clarify or simplify existing requirements to which advisers, including those that are small entities, are already subject. To the extent that such requirements clarify or simplify existing requirements, the proposed rule and amendments may actually alleviate reporting, recordkeeping, or compliance burdens on advisers, including those that are small entities.
The Commission believes that there are no rules that duplicate or conflict with the proposed rule. Proposed rule 204A-1 and the proposed amendments to rule 204-2 overlap with provisions of rule 17j-1 under the Company Act to some extent. Rule 17j-1 requires certain investment advisers to adopt codes of ethics, review personal securities holdings and transaction reports of certain access persons, and pre-approve certain investments by access persons. The provisions of rule 17j-1 do not apply to all investment advisers registered with us, but only to those investment advisers that advise registered investment companies. Furthermore, our proposed rule and rule amendments are designed to coordinate with, rather than duplicate or conflict with, the obligations of an investment adviser subject to both rules.
The Regulatory Flexibility Act directs the Commission to consider significant alternatives that would accomplish the stated objectives, while minimizing any adverse impact on small entities. In connection with the proposed rule, the Commission considered the following alternatives: (i) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (ii) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (iii) the use of performance rather than design standards; and (iv) an exemption from coverage of the rule, or any part thereof, for such small entities.
The Commission has drafted proposed rule 204A-1 to permit each firm subject to the rule to design and structure its own code of ethics in light of the firm's operational structure and the particular types of conflicts encountered by the firm in connection with its business and clients. In the same way, the proposed amendments to rule 204-2 would permit each firm to develop its own system for capturing and retaining the requisite information. In connection with considering whether to establish differing reporting, compliance or recordkeeping requirements or timetables for small entities, as well as whether to use performance rather than design standards, the Commission believes at this time that the flexibility already built into the proposal adequately addresses these alternatives.
In considering whether to attempt to further clarify, consolidate, or simplify the reporting, compliance and recordkeeping requirements under the rule for small entities, the Commission believes at this time that the proposal achieves the appropriate balance between simplicity and investor protection. The compliance requirements, which are integral to the effectiveness of the rule, are not
The proposed rule would, to the greatest extent possible, incorporate performance rather than design standards. The rule enumerates few elements required for codes of ethics, allowing all firms, including small firms, to tailor the remainder of their codes of ethics to the nature and scope of their business.
Finally, the Commission believes at this time that it would be inconsistent with the purposes of the Advisers Act to entirely exempt small entities from the proposed rule and rule amendments. The proposed codes of ethics are designed to promote advisers' fulfillment of their fiduciary duty to clients and to guard against personal securities trading by advisers' access persons that may be contrary to clients' interests. Since the protections of the Advisers Act are intended to apply equally to clients of both large and small advisory firms, it would be inconsistent with the purposes of the Act to specify different requirements for small entities. To the extent we were able, however, the Commission has excepted certain small advisers, potentially including some small entities, from the requirements that access persons make personal securities reports and that access persons obtain pre-approval before making certain investments.
We encourage written comments on matters discussed in the IRFA. In particular the Commission seeks comment on:
• the number of small entities that would be affected by the proposed rule and rule amendments; and
• whether the effects of the proposed rule and rule amendments on small entities would be economically significant.
Commenters are asked to describe the nature of any effect and provide empirical data supporting the extent of the effect.
We are proposing amendments to rule 17j-1 pursuant to our authority set forth in sections 17(j) and 38(a) of the Investment Company Act [15 U.S.C. 80a-17(j) and 80a-37(a)] and sections 206(4) and 211(a) of the Advisers Act [15 U.S.C. 80b-4 and 80b-11(a)].
We are proposing amendments to rule 204-2 pursuant to our authority set forth in sections 204 and 206(4) of the Advisers Act [15 U.S.C. 80b-4 and 80b-6(4)].
We are proposing new rule 204A-1 pursuant to our authority set forth in sections 202(a)(17), 204A, 206(4) and 211(a) of the Advisers Act [15 U.S.C. 80b-2(a)(17), 80b-4a, 80b-6(4) and 80b-11(a)].
We are proposing amendments to Form ADV under section 19(a) of the Securities Act of 1933 [15 U.S.C. 77s(a)], sections 23(a) and 28(e)(2) of the Securities Exchange Act of 1934 [15 U.S.C. 78w(a) and 78bb(e)(2)], section 319(a) of the Trust Indenture Act of 1939 [15 U.S.C. 77sss(a)], section 38(a) of the Investment Company Act of 1940 [15 U.S.C. 78a-37(a)], and sections 203(c)(1), 204, and 211(a) of the Investment Advisers Act of 1940 [15 U.S.C. 80b-3(c)(1), 80b-4, and 80b-11(a)].
Investment companies, Reporting and recordkeeping requirements, Securities.
For reasons set forth in the preamble, Title 17, Chapter II of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for Part 270 continues to read in part as follows:
15 U.S.C. 80a-1
2. Section 270.17j-1 is amended by revising paragraph (d)(2)(iv) to read as follows:
(d) * * *
(2) * * *
(iv) An Access Person to an investment adviser need not make a separate report to the investment adviser under paragraph (d)(1) of this section to the extent the information in the report would duplicate information required to be recorded under § 275.204-2(a)(13) of this chapter.
3. The general authority citation for Part 275 is revised to read in part as follows:
15 U.S.C. 80b-2(a)(11)(F), 80b-2(a)(17), 80b-3, 80b-4, 80b-4a, 80b-6(4), 80b-6a, and 80b-11, unless otherwise noted.
4. Section 275.204-2 is amended by revising paragraphs (a)(12), (a)(13), and (e)(1) to read as follows:
(a) * * *
(12)(i)A copy of the investment adviser's code of ethics adopted and implemented pursuant to § 275.204A-1 that is in effect, or at any time within the past five years was in effect;
(ii) A record of any violation of the code of ethics, and of any action taken as a result of the violation; and
(iii)A record of all written acknowledgments as required by § 275.204A-1(a)(6) for each person who is currently, or within the past five years was, a supervised person of the investment adviser.
(13)(i)A record of each report made by an access person as required by § 275.204A-1(b), including any information provided under paragraph (b)(3)(iii) of that section in lieu of such reports, all such information, whether from a report made by an access person or from information provided in lieu of
(ii) A record of the names of persons who are currently, or within the past five years were, access persons of the investment adviser; and
(iii) A record of any decision, and the reasons supporting the decision, to approve the acquisition of securities by access persons under § 275.204A-1(c), for at least five years after the end of the fiscal year in which the approval is granted.
(e)(1) All books and records required to be made under the provisions of paragraphs (a) to (c)(1)(i), inclusive, and (c)(2) of this section (except for books and records required to be made under the provisions of paragraphs (a)(11), (a)(12)(i), (a)(12)(iii), (a)(13)(ii), (a)(13)(iii), (a)(16), and (a)(17)(i) of this section), shall be maintained and preserved in an easily accessible place for a period of not less than five years from the end of the fiscal year during which the last entry was made on such record, the first two years in an appropriate office of the investment adviser.
5. Section 275.204A-1 is added to read as follows:
(a)
(1) A standard (or standards) of business conduct that you require of your supervised persons, which standard must reflect your fiduciary obligations and those of your supervised persons;
(2) Provisions requiring your supervised persons to comply with applicable federal securities laws;
(3) Provisions reasonably designed to prevent access to material nonpublic information about your securities recommendations and your clients' securities holdings and transactions, by persons who do not need such information to perform their duties;
(4) Provisions that require all of your access persons to report, and you to review, their personal securities transactions and holdings periodically as provided below;
(5) Provisions requiring supervised persons to report any violations of your code of ethics promptly to your chief compliance officer or to another person you designate in your code of ethics; and
(6) Provisions requiring you to provide each of your supervised persons with a copy of your code of ethics and any amendments, and requiring your supervised persons to provide you with a written acknowledgment of their receipt of the code and any amendments.
(b)
(i)
(A) The title and exchange ticker symbol or CUSIP number, type of security, number of shares and principal amount (if applicable) of each reportable security in which the access person has any direct or indirect beneficial ownership;
(B) The name of any broker, dealer or bank with which the access person maintains an account in which any securities are held for the access person's direct or indirect benefit; and
(C) The date the access person submits the report.
(ii)
(A) No later than 10 days after the person becomes an access person, and the information must be current as of the date the person becomes an access person.
(B) At least once each 12-month period thereafter on a date you select, and the information must be current as of a date no more than 30 days prior to the date the report was submitted.
(2)
(i)
(A) The date of the transaction, the title and exchange ticker symbol or CUSIP number, the interest rate and maturity date (if applicable), the number of shares and the principal amount (if applicable) of each reportable security involved;
(B) The nature of the transaction (
(C) The price of the security at which the transaction was effected;
(D) The name of the broker, dealer or bank with or through which the transaction was effected; and
(E) The date the access person submits the report.
(ii)
(3)
(i) Any report with respect to securities held in accounts over which the access person had no direct or indirect influence or control;
(ii) A transaction report with respect to transactions effected pursuant to an automatic investment plan;
(iii) A transaction report if the report would duplicate information contained in broker trade confirmations or account statements that you hold in your records so long as you receive the confirmations or statements no later than 10 days after the end of the applicable calendar quarter.
(c)
(d)
(e)
(1)
(i) Any of your supervised persons:
(A) Who has access to nonpublic information regarding any clients' purchase or sale of securities, or information regarding the portfolio holdings of any reportable fund, or
(B) Who is involved in making securities recommendations to clients, or who has access to such recommendations that are nonpublic.
(ii) If providing investment advice is your primary business, all of your
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(ii) Any fund whose investment adviser or principal underwriter controls you, is controlled by you, or is under common control with you. For purposes of this section,
(10)
(i) Direct obligations of the Government of the United States;
(ii) Bankers' acceptances, bank certificates of deposit, commercial paper and high quality short-term debt instruments, including repurchase agreements;
(iii) Shares issued by money market funds; and
(iv) Shares issued by open-end funds other than reportable funds.
6. The authority citation for Part 279 continues to read as follows:
The Investment Advisers Act of 1940, 15 U.S.C. 80b-1,
7. Form ADV (referenced in § 279.1) is amended by:
In Part II, at the end of Item 9 add “Describe, on Schedule F, your code of ethics, and state that you will provide a copy of your code of ethics to any client or prospective client upon request.”
The text of Form ADV does not and this amendment will not appear in the Code of Federal Regulations.
By the Commission.
Appendix A to the preamble will not appear in the Code of Federal Regulations.