Agricultural Marketing Service
Food Safety and Inspection Service
Forest Service
Natural Resources Conservation Service
Rural Business-Cooperative Service
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Air Force Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Food and Drug Administration
Indian Health Service
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Customs and Border Protection Bureau
Federal Emergency Management Agency
Land Management Bureau
Antitrust Division
Employment Standards Administration
Copyright Office, Library of Congress
Federal Aviation Administration
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.
Federal Aviation Administration, DOT.
Final rule.
This amendment adopts a new airworthiness directive (AD) for the specified Bell Helicopter Textron Canada (BHTC) model helicopters that requires certain inspections of the main rotor yoke (yoke) for a crack, fretting, or buffer deterioration. If a crack is found, the AD requires replacing the yoke with an airworthy yoke before further flight. If fretting or buffer deterioration are found, the AD requires further inspecting the main rotor hub assembly (hub assembly) and repairing or replacing any unairworthy parts. Also, the AD requires a torque inspection of the flapping bearing retaining nuts at specified intervals. This amendment is prompted by the discovery of a crack in a yoke. The actions specified by this AD are intended to prevent failure of the yoke and subsequent loss of control of the helicopter.
Effective November 9, 2004.
Charles Harrison, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Safety Management Group, Fort Worth, Texas 76193-0110, telephone (817) 222-5128, fax (817) 222-5961.
A proposal to amend 14 CFR part 39 to include an AD for the specified model helicopters was published in the
Transport Canada, the airworthiness authority for Canada, notified the FAA that an unsafe condition may exist on BHTC Model 222, 222B, 222U, and 230 helicopters. Transport Canada advises of a fatigue crack being found in a yoke in the area of the flapping bearing bushings.
BHTC has issued Alert Service Bulletin (ASB) Nos. 222-03-97 for the Model 222 and 222B helicopters, 222U-03-68 for the Model 222U helicopters, and 230-03-28 for the Model 230 helicopters, all dated September 23, 2003. The ASB's specify a recurring visual inspection of the yoke for a crack, fretting, or buffer deterioration in the four (4) areas around the flapping bearing attachment bushings. The ASB's also specify verifying the torque of the main rotor flapping bearing retaining bolts/nuts. Transport Canada classified these service bulletins as mandatory and issued AD No. CF-2003-27, dated November 17, 2003, to ensure the continued airworthiness of these helicopters in Canada.
These helicopter models are type certificated in Canada 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, Transport Canada has kept the FAA informed of the situation described above. The FAA has examined the findings of Transport Canada, 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.
Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.
The FAA estimates that this AD will affect 105 helicopters of U.S. registry. The FAA also estimates that this AD will:
• Take
• Take
• Take 4 work hours to remove, inspect, and replace the yoke if required.
• The average labor rate is $65 per work hour.
• Required parts will cost about $32,675.
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) 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 final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas.
Air transportation, Aircraft, Aviation safety, Safety.
49 U.S.C. 106(g), 40113, 44701.
To prevent failure of the yoke and subsequent loss of control of the helicopter, accomplish the following:
(a) Within 50 hours time-in-service (TIS) or by the next scheduled inspection for the hub assembly, whichever occurs first, and thereafter at intervals not to exceed 25 hours TIS, using a 10X or higher magnifying glass, visually inspect the main rotor yoke (yoke) for a crack, fretting or buffer deterioration in the four areas around the flapping bearing attachment bushings as shown in the following Figure 1 of this AD:
Bell Helicopter Textron Alert Service Bulletin (ASB) Nos. 222-03-97 for the Model 222 and 222B, 222U-03-68 for the Model 222U, and 230-03-28 for the Model 230, all dated September 23, 2003, pertain to the subject of this AD.
(1) If a crack is found, before further flight, replace the yoke with an airworthy yoke.
(2) If fretting or buffer deterioration is found on the yoke in the areas shown in Figure 1 of this AD, before further flight, disassemble the hub assembly and further
(i) If a crack is found on any part, before further flight, replace the part with an airworthy part.
(ii) If fretting or buffer deterioration is found on any part, before further flight, repair any unairworthy part or replace the part with an airworthy part.
(b) Within 50 hours TIS or by the next scheduled inspection for each hub assembly, whichever occurs first, and thereafter at intervals not to exceed 50 hours TIS, determine the torque of the four main rotor flapping bearing retaining bolts or nuts. While holding the bolt head, apply 100 foot-pounds (135Nm) of torque to the nut in the tightening direction.
(1) If 100 foot-pounds (135Nm) of torque is reached without movement of the nut, before further flight, torque the nut to 125 foot-pounds.
(2) If any nut moves before reaching 100 foot-pounds (135Nm) of torque, before further flight, remove both flapping bearings from the hub assembly. Inspect the yoke, the bolt and nut, and the trunnion supports with a 10X or higher magnifying glass, for a crack, fretting, or buffer deterioration.
(i) If a crack is found on any part, before further flight, replace the part with an airworthy part.
(ii) If fretting or buffer deterioration is found on any part, before further flight, repair any unairworthy part or replace the part with an airworthy part.
(c) 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 Group, FAA, for information about previously approved alternative methods of compliance.
(d) This amendment becomes effective on November 9, 2004.
The subject of this AD is addressed in Transport Canada (Canada) AD CF-2003-27, dated November 17, 2003.
Commodity Futures Trading Commission.
Correcting amendment.
This document contains a correcting amendment to the final rule amendments that were published on October 23, 2001 (66 FR 53510). Those rule amendments related to various aspects of the operations of intermediaries of commodity interest transactions. The particular rule in issue concerns the close out of offsetting positions. The correcting amendment makes clear that an account controller, in addition to the customer, may instruct a futures commission merchant (FCM) to hold open offsetting long and short commodity interest positions.
October 5, 2004.
Lawrence B. Patent, Deputy Director, Compliance and Registration Section, Division of Clearing and Intermediary Oversight, Commodity Futures Trading Commission, 1155 21st Street NW., Washington, DC 20581. Telephone (202) 418-5439.
On October 23, 2001, the Commodity Futures Trading Commission (Commission) published final amendments to Commission Rule 1.46, among others. The Commission amended Rule 1.46 to permit customers or account controllers to instruct FCMs (in writing or orally) if they wish to deviate from the default rule that requires FCMs to close out offsetting long and short commodity interest positions on a first-in, first-out basis, looking across all accounts carried for the same customer. 66 FR 53510, 53514, 53517-18. The Commission stated that, “[i]n order to implement this revision of Rule 1.46, the Commission is amending
Despite this clear statement of the Commission's intent in the preamble of the adopting
The Commission, to eliminate the inadvertent confusion that it may have created in this area, has determined to make a technical amendment to the introductory text of Rule 1.46(a) so that it is clear that an account controller, as well as the customer, may instruct an FCM to hold open offsetting commodity interest positions. Of course, an FCM retains the discretion to refuse to honor any such instruction from a customer or account controller and to apply the general rule of closing out offsetting long and short commodity interest positions on a first-in, first-out basis.
As published, the final rules contain regulatory text that may prove to be misleading and is in need of clarification.
Commodity futures; Reporting and recordkeeping requirements.
7 U.S.C. 1a, 2, 2a, 4, 4a, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6j, 6k, 6l, 6m, 6n, 6o, 6p, 7, 7a, 7b, 8, 9, 12, 12a, 12c, 13a, 13a-l, 16, 16a, 19, 21, 23 and 24.
Postal Service.
Final rule.
The Postal Service announces the issuance of Issue 30 of the International Mail Manual (IMM), and its incorporation by reference in the Code of Federal Regulations.
This final rule is effective on October 5, 2004. The incorporation by reference of Issue 30 of the IMM is approved by the Director of the Federal Register as of October 5, 2004.
Obataiye B. Akinwole, (202) 268-7262.
Issue 30 of the International Mail Manual was issued on August 1, 2004. It replaced the previous issue of the IMM, and contained all IMM revisions from June 13, 2003, through July 22, 2004.
This new Issue of the IMM continues to serve the objectives of the Postal Service's Transformation Plan of April 2000, to enable the Postal Service to fulfill its long-standing mission of providing affordable, universal mail service. The Plan's key strategies include improving operational efficiency, supporting growth through added value to customers, and enhancing the Postal Service's performance-based culture.
In addition, Issue 30 sets forth specific changes affecting international postal services, such as the adoption of new customs forms for international mail and military mail, and the network change that removed Washington Dulles International Airport as a U.S. International Exchange Office. The new Issue also corrects various printing and format errors and omissions in the previous Issue.
The International Mail Manual is available to the public on a subscription basis only from: New Orders, Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954. The subscription price for one issue is currently $36 to addresses in the United States, and $50.40 to all foreign addresses. The IMM is also published and available to all users on the Internet at
Foreign relations, Incorporation by reference.
Administrative practice and procedure.
39 U.S.C. 201, 202, 401(2), 402, 403, 404, 410, 1001, 1005, 1209; Pub. L. 91-375, Secs. 3-5, 84 Stat. 773-75.
5 U.S.C. 552(a); 39 U.S.C. 401, 404, 407, 408.
(a) Section 552(a) of Title 5, U.S.C., relating to the public information requirements of the Administrative Procedure Act, provides in pertinent part that “* * * matter reasonably available to the class of persons affected thereby is deemed published in the
(b) The current Issue of the IMM is incorporated by reference in paragraph (a) of this section. Successive Issues of the IMM are listed in the following table:
The provisions of the International Mail Manual Issue 30, effective August 1, 2004, are applicable with respect to the international mail services of the Postal Service.
Copies of the International Mail Manual may be purchased from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9371. The IMM is available for examination on the Internet at
New issues of the International Mail Manual will be incorporated by reference into this part and will be available at
Environmental Protection Agency.
Direct final rule.
The Environmental Protection Agency (EPA) is approving a June 27, 2003, request from Wisconsin to revise its State Implementation Plan (SIP) for a source specific revision for Northern Engraving Corporation (NEC). The Clean Air Act (Act), provides the authority for a state to provide a plan for the implementation, maintenance, and enforcement of the national ambient air quality standards in each air quality control region. The Wisconsin Department of Natural Resources (WDNR) and EPA entered into a memorandum of agreement concerning implementation of a joint cooperative pilot program and agreed to pursue regulatory innovation at two NEC facilities in Holmen, Wisconsin and Sparta, Wisconsin. Since then, the WDNR has amended the agreement to include two additional NEC facilities in Galesville, Wisconsin and West Salem, Wisconsin. Because portions of the Environmental Cooperative Agreement with NEC supercede portions of rules in the Wisconsin SIP, a source-specific SIP revision is required.
This rule is effective on December 6, 2004, unless EPA receives adverse written comments by November 4, 2004. If EPA receives adverse comments, EPA will publish a timely withdrawal of the rule in the
You may inspect copies of the documents relevant to this action during normal business hours at the following location: United States Environmental Protection Agency Region 5, 77 West Jackson Boulevard, Chicago, Illinois, 60604.
Send written comments to: Pamela Blakely, Chief, Permits and Grants Section, United States Environmental Protection Agency (AR-18J), 77 West Jackson Boulevard, Chicago, Illinois 60604.
Comments may also be submitted electronically or through hand delivery/courier, please follow the detailed instructions described in part (I)(B)(1)(i)
Constantine Blathras at (312) 886-0671.
This
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For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking Region 5 Air Docket WI117” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.
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i.
ii.
iii.
2.
3.
Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be
On March 25, 1999, the WDNR and the EPA entered into a memorandum of agreement concerning implementation of the joint state/EPA agreement to pursue regulatory innovation and the Wisconsin Environmental Cooperation Pilot Program. On June 7, 2002, Thomas V. Skinner, Regional Administrator, EPA Region 5, sent a letter to Darrell Bazzell, Secretary, WDNR, containing EPA's final response to the WDNR's innovation proposal for alternative permit conditions at the NEC facilities. The NEC facilities affected by that agreement were the Holmen and Sparta facility. On January 24, 2003, EPA published a direct final rule in the
The purpose of this action is to include two additional facilities into the source specific SIP revision under the agreement between WDNR and NEC. The Galesville facility is located at 1200 W. Gale Avenue, Trempeauleau County, Galesville, Wisconsin, and the West Salem facility is located at 600 Brickl Road, La Crosse County, West Salem, Wisconsin. Both Trempealeau and La Crosse counties have been classified as unclassifiable/attainment for ozone, since November 15, 1990. Volatile organic compounds are a precursor to ozone. Each facility's permit includes facility-wide emission rates for volatile organic compounds and hazardous air pollutants. The Northern Engraving Galesville facility manufactures decorative plastic automotive trim and nameplates for the automotive and appliance industries. Operations include screening of plastic sheets, punch pressing, laser cutting and etching, inspection, spray touch-up, shipping and receiving. The Northern Engraving West Salem facility manufactures plastic and metal decorative automotive trim. Operations include screen printing, roll coating, spray coating, lithographic printing and pad printing processes.
The innovative components of the proposal for the NEC Galesville and West Salem facilities include: (1) Waiver from the requirements that facilities obtain a new permit prior to construction; (2) waiver from the requirement that facilities receive an appropriate permit prior to operating new process equipment; (3) waiver in the facilities' minor source permits of individual process line latest available control technology requirements for controlling volatile organic compound emissions; and (4) recordkeeping and reporting flexibility.
The Environmental Cooperative Agreement, specifically section XII (Operational Flexibility and Variances), proposes to establish new requirements for the two NEC facilities. The proposed new requirements would replace or revise certain requirements that might otherwise apply to those sources. Some of the requirements to be replaced or revised are currently embodied in Wisconsin's SIP for meeting air quality objectives. In such cases, the proposed flexibility in the Environmental Cooperative Agreement cannot be granted by WDNR unless the new requirements are first approved by EPA as a source-specific revision to the SIP. The innovative components of the agreement listed above provide the additional NEC facilities the flexibility to commence construction or operating of the process equipment prior to obtaining a construction. The facility would continue to comply with the facility wide emission limitations in the permit. Additionally, certain processes at the West Salem facility would not have to comply with the reasonable available control technology requirements for controlling volatile organic compounds. The individual process lines at both NEC facilities would not have to apply the latest available control technique for controlling volatile organic compound emissions. The NEC facilities are now required to keep monthly records of emissions for each facility.
The WDNR submitted portions of section XII of the Environmental Cooperative Agreement (Operational Flexibility and Variances) as a source-specific SIP revision.
The EPA is approving a June 27, 2003, request from Wisconsin to revise its State Implementation Plan (SIP) for a source specific revision for Northern Engraving Corporation (NEC). Section 110 of the Act, 42 U.S.C. 7410, provides the authority for a state to provide a plan for the implementation, maintenance, and enforcement of the national ambient air quality standards in each air quality control region. The Wisconsin Department of Natural Resources (WDNR) and EPA entered into a memorandum of agreement concerning implementation of a joint cooperative pilot program and agreed to pursue regulatory innovation at two NEC facilities in Holmen, Wisconsin and Sparta, Wisconsin. Since then, the WDNR has amended the agreement to include two additional NEC facilities in Galesville, Wisconsin and West Salem, Wisconsin. Because portions of the Environmental Cooperative Agreement with NEC supercede portions of rules in the Wisconsin SIP, a source-specific SIP revision is required.
The EPA is publishing this SIP revision approval without prior proposal, because EPA views this as a noncontroversial revision and anticipates no adverse comments. However, in a separate document in this
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.
For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).
This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law.
Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.
This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 6, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged late in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Volatile organic compounds.
This document was received at the Office of the Federal Register on September 29, 2004.
42 U.S.C. 7401
(c) * * *
(110) On June 27, 2003, the Wisconsin Department of Natural Resources (WDNR) submitted a site specific revision to its state implementation plan for emissions from Northern Engraving Corporation's (Northern Engraving) Galesville and West Salem facilities in the form of operating permit conditions, based upon an Environmental Cooperative Agreement reached between WDNR and Northern Engraving for incorporation into the federally enforceable State Implementation Plan (SIP). An exemption for pre-construction permitting activities for certain physical changes or changes in the method of operation at the Northern Engraving Corporation's Galesville and West Salem facilities is established. Specific permit conditions for these two facilities are incorporated by reference in the SIP.
(i) Incorporation by reference.
(A) Specific Permit Conditions under the Environmental Cooperative Agreement for Northern Engraving Corporation's (NEC) Galesville facility contained in Part I.A. of Wisconsin Air Pollution Control Operation Permit NO. 662008930-F02 issued April 26, 2002 to NEC, 1200 West Gale Avenue, Galesville, Trempeauleau County, Wisconsin. This permit expires April 26, 2007.
(B) Specific Permit Conditions under the Environmental Cooperative Agreement for Northern Engraving Corporation's (NEC) West Salem facility contained in Part I.A. of Wisconsin Air Pollution Control Operation Permit NO. 632024800-F01 issued June 23, 2003 to NEC, 600 Brickl Road, West Salem, La Cross County, Wisconsin. This permit expires June 23, 2008.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce.
Notice of suspension of surfclam minimum size limit.
NMFS suspends the minimum size limit of 4.75 inches (12.07 cm) for Atlantic surfclams for the 2005 fishing year. This action is taken under the authority of the implementing regulations for this fishery, which allow for the annual suspension of the minimum size limit based upon set criteria. The intended effect is to relieve the industry from a regulatory burden that is not necessary, as the majority of surfclams harvested are larger than the minimum size limit.
Effective January 1, 2005, through December 31, 2005.
Brian R. Hooker, Policy Analyst, 978-281-9220.
Section 648.72(c) of the regulations implementing the Fishery Management Plan (FMP) for the Atlantic Surfclam and Ocean Quahog Fisheries allows the Administrator, Northeast Region, NMFS (Regional Administrator) to suspend annually, by publication of a notification in the
At its June 2004, meeting, the Mid-Atlantic Fishery Management Council (Council) voted to recommend that the Regional Administrator suspend the minimum size limit for the 2005, 2006, and 2007 fishing years. In accordance with the provisions of the FMP the Regional Administrator will publish the suspension of the surfclam minimum size annually for fishing years 2005-2007 if the proportion of undersized surfclams is under 30 percent of the total surfclam landings for each fishing year. The Council will also continue to review these specifications annually and may modify these specifications, if necessary. Commercial surfclam shell length data for 2004 were analyzed to determine the percentage of surfclams landed that were smaller than the minimum size requirement. The analysis indicated that 0.7 percent of the samples taken overall were composed of surfclams that were less than 4.75 inches (12.07 cm). Based on these data, the Regional Administrator adopts the Council's recommendation and suspends the minimum size limit for Atlantic surfclams from January 1, 2005, through December 31, 2005.
This action is authorized by 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Proposed rule and opportunity to file exceptions.
This recommended decision invites written exceptions on proposed amendments to the marketing agreement and order (order) for sweet cherries grown in Washington. Four amendments were proposed by the Washington Cherry Marketing Committee (Committee), which is responsible for local administration of the order: adding authority for promotion, including paid advertising, and production research projects; adding authority for supplemental rates of assessment for individual varieties of cherries; adding authority for the Committee to accept voluntary contributions for research and promotion; and, adding a public member to the Committee. Two additional amendments are proposed by the Agricultural Marketing Service: establishing tenure limitations for Committee members; and, requiring that continuance referenda be conducted every 6 years.
Written exceptions must be filed by November 4, 2004.
Written exceptions should be filed with the Hearing Clerk, U.S. Department of Agriculture, room 1081-S, Washington, DC 20250-9200, Facsimile number (202) 720-9776 or
Melissa Schmaedick, Marketing Order Administration Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, USDA, Post Office Box 1035, Moab, UT 84532, telephone: (435) 259-7988, fax: (435) 259-4945.
Small businesses may request information on this proceeding by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, fax: (202) 720-8938.
Prior documents in this proceeding include a Notice of Hearing issued on October 6, 2003, and published in the October 10, 2003, issue of the
This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and is therefore excluded from the requirements of Executive Order 12866.
Notice is hereby given of the filing with the Hearing Clerk of this recommended decision with respect to the proposed amendment of Marketing Agreement and Order No. 923 regulating the handling of sweet cherries grown in designated counties in Washington, and the opportunity to file written exceptions thereto. Copies of this decision can be obtained from Melissa Schmaedick, whose address is listed above.
This recommended decision is issued pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601
The proposed amendments are based on the record of a public hearing held November 18, 2003, in Yakima, Washington. Notice of this hearing was published in the
The Committee's proposed amendments include: (1) Adding the authority for promotion, including paid advertising, and production research projects; (2) adding the authority for supplemental rates of assessment for individual varieties of cherries; (3) adding the authority for the Committee to accept voluntary contributions for marketing research and promotion, including paid advertising, and production research projects; and (4) adding a public member and alternate public member to the Committee.
The Fruit and Vegetable Programs of AMS proposed two additional amendments: to establish tenure limitations for Committee members and require that continuance referenda be conducted on a periodic basis to ascertain grower support for the order. In addition, AMS proposed to allow such changes as may be necessary to the order, if any of the proposed changes are adopted, so that all of the order's provisions conform to the effectuated amendments.
Six industry witnesses testified at the hearing. These witnesses represented sweet cherry growers and handlers in the production area, and they all supported the Committee's recommended changes.
Witnesses addressed the need for adding the authority for promotion, including paid advertising, and production research projects. This authority would enable the Committee to develop more efficient growing, harvesting, marketing and distribution techniques for sweet cherries produced in the production area. Promotional activities, including paid advertising, could lead to greater market exposure and consumer demand for sweet cherries, thereby supporting increased grower returns.
Witnesses stated their approval of the Committee's recommendation to add the authority for supplemental rates of assessment for individual varieties of cherries. Funds generated from supplemental rates of assessment would be used for research or promotion projects specific to an individual variety of sweet cherry.
Witnesses also supported the proposal to add authority for the Committee to accept voluntary contributions for marketing research and promotion,
Lastly, the Committee recommended adding a public member and alternate public member to the Committee. Witnesses stated that a public member would benefit Committee deliberations by bringing a non-industry, consumer perspective to the table.
An AMS witness testified in support of tenure limitations as a way to broaden industry participation in the program. That witness also supported continuance referenda as a means of determining grower sentiment on the order's operations.
At the conclusion of the hearing, the Administrative Law Judge stated that the final date for interested persons to file proposed findings and conclusions or written arguments and briefs based on the evidence received at the hearing would be 30 days after USDA's receipt of the hearing record transcript. No briefs were filed.
The material issues presented on the record of hearing are as follows:
(1) Whether to add authority for promotion, including paid advertising, and production research projects;
(2) Whether to add authority for supplemental rates of assessment for individual varieties of cherries;
(3) Whether to add authority for the Committee to accept voluntary contributions for marketing research and promotion, including paid advertising, and production research projects;
(4) Whether to add a public member and alternate public member seat to the Committee;
(5) Whether to impose term limitations on Committee members; and
(6) Whether to add a requirement that continuance referenda be held every 6 years.
The following findings and conclusions on the material issues are based on evidence presented at the hearing and the record thereof.
Section 923.45 of the order should be amended to add authority for production research and promotion, including paid advertising. That order provision currently authorizes only marketing research and development activities.
This authority would enable the Committee to develop more efficient growing, harvesting, marketing and distribution techniques for sweet cherries produced in the production area. Promotional activities, including paid advertising, could lead to greater market exposure and consumer demand for Washington sweet cherries, thereby supporting increased returns for growers.
This authority would enable the Committee to fund production research and promotion efforts. Such activities could be conducted by the Committee itself or be contracted out to other parties. The industry believes that it is important to include promotion and production research under the Federal marketing order as these activities are vital to the long-term health of the industry.
The record evidence shows that sweet cherry acreage in Washington has increased from 21,000 acres in 1997 to an estimated 30,000 acres in 2004. In that same time period, overall tonnage of Washington sweet cherries increased from 62,000 tons to 120,000 tons. Witnesses testified that acreage and production will continue to increase, making promotion and research all that more important. As production increases, there is an increasing need to identify means of increasing quality and more accurately determining the volume of cherries that will be available to consumers in a given year.
For many years, production research and promotion has been carried out by the Washington State Fruit Commission (Commission) and other entities within the industry. Demonstrated success of these research and promotion programs has led to industry support for adding this authority to the order.
Testimony indicated that current industry production research and promotion activities range from the development of more accurate weather detection systems and timely distribution strategies, to in-store promotion activities and paid advertising.
According to the record, production research in forecasting crop yield and harvest timing through Global Positioning Systems (GPS), satellite imagery, and real-time reporting technology has been particularly successful. Sweet cherries are a highly perishable crop. Accurate prediction of crop size and harvest timing is vital to the effective marketing and distribution of high quality cherries to the retail sectors. Because of the new advances in production technology, the industry was able to effectively anticipate the timing and record-breaking volume of the 2003 sweet cherry crop. In 2003, 8.5 million boxes were harvested, marketed and sold over a four week period (June 15 to July 15). Before that year, the industry's record volume for those four weeks was 5.5 million boxes.
Another example of research conducted by the industry involves taste testing of newly developed sweet cherry varieties. According to the record, new varieties developed in Prosser, Washington, were taken to the United Kingdom for consumer taste tests in 2000. This project was a cooperative effort by the Commission, Washington State University and the Washington State Research Commission. This project helped the industry determine consumer receptivity of new varieties introduced into the market.
A representative of the Commission testifying at the hearing stated that, since 1997, both volume and prices of Washington sweet cherries have shown annual increases. Increased market demand can be tied to the Commission's success in working with the retail sector. From 1997 to 2003, the number of retailers running 4-week promotion ads increased from 30 to 79. At the same time, the number of retail chains decreased from 250 to 160. The witness stated that these numbers indicate that the relative proportion of retail exposure for sweet cherries since 1997 has increased considerably.
Consumers have responded to marketing efforts by doubling their purchase volume during targeted retail promotion periods. According to the witness, since 1997, sweet cherries have become a focus item for retail, as they have grown to make up at least 3.5 percent of the total produce category sales. Sweet cherry sales also continue to drive just over 10 percent sales lifts in the U.S. domestic retail market in the months of June and July.
The witness estimates that the dollar impact on the local economy, or the residual benefit of the Commission's marketing efforts and increased sweet cherry demand within the State of Washington, has increased 29.74 percent over the past 5 years. With nearly 70 percent of total sweet cherry production sold domestically, the industry's marketing efforts have enabled the Washington sweet cherry industry to remain profitable in light of increasing production, rather than fall into a non-sustaining oversupply situation with low producer returns.
One witness who produces other crops in addition to sweet cherries indicated that the recent loss of the Washington State Apple Commission
When asked whether a voluntary promotion program would work for the Washington sweet cherry industry, witnesses responded that the authority to conduct research and promotion activities under the order would ensure that those activities continue in a consistent manner, and that they would not be subject to economic cycles within the industry. One witness explained that a cooperative approach to funding these activities would operate as an “umbrella” mechanism for the entire industry by providing research and promotion solutions to all industry participants. Witnesses also indicated that this authority would be equally beneficial to small and large grower and handler entities. Grower input into the development of any research or promotion programs would also ensure that these activities, and the use of assessment funds to support them, would remain responsive to industry needs.
Adding this authority to the order would provide the Committee with the flexibility to use research and promotional activities, including paid advertising, to assist and improve production techniques, and promote the marketing, distribution and consumption of Washington sweet cherries. The use of assessments and available funding sources for research and promotion, including paid advertising, would be an important component to increasing demand and consumption of Washington sweet cherries.
The record supports adding authority for production research and promotion to § 923.45 of the order. There was no opposition testimony on this issue.
Section 923.41, Assessments, of the order should be amended to allow additional rates of assessment for individual varieties of cherries. Currently, the order provides for a single rate of assessment for all cherries, regardless of variety, to be established. The base assessment rate is recommended by the Committee for approval by the Department. If authority to establish supplemental rates of assessment by variety was added to the order, those rates would also be recommended by the Committee for approval by USDA. Assessments are used to fund the administrative functions of the Committee, as well as any research and promotion activities. According to the record, supplemental rates of assessment would be used for expenses specific to an individual variety of sweet cherry.
Witnesses stated that there are a number of reasons for which specific varieties may warrant supplemental assessment rates, including differences in production and marketing needs. Supplemental assessments could be used to fund research that is particular to the needs of a specific variety, or could be used to fund promotional projects to market lesser known or off-season varieties. Supplemental rates could also be applied when a particular variety of cherries produces a larger than anticipated crop in a given year. In those cases, extra funds generated through a supplemental rate could be used to support additional marketing efforts needed to stimulate demand and move that crop within the market.
Witnesses stated that any supplemental assessments collected by variety of cherry should only be used to fund projects associated with that variety. While all growers within the production area benefit from general sweet cherry production research and marketing efforts, growers of specific varieties should fund any projects aimed at benefiting that particular variety. For example, if a new variety of sweet cherry is developed, special marketing may be needed to introduce that variety to consumers in the market. While there is a risk associated with the production of that new variety, both the costs and the benefits of producing a unique and potentially higher price product should be attributed to the growers of that product.
It is not anticipated that this authority would unduly burden small growers or handlers. While a supplemental assessment would represent an additional cost, witnesses stated that the benefits derived from that assessment would outweigh its cost. Adding this authority in conjunction with the proposal to add authority to conduct production research and promotion activities, including paid advertising, would allow the Committee to streamline and more specifically focus its research and promotion activities to the needs of the industry.
Record evidence supports amending the marketing order to authorize supplemental rates of assessment for specific varieties of sweet cherries. This proposal would allow the Committee to collect assessment funds to be used for research and promotion activities that are specific to a single variety of sweet cherry in addition to projects that are beneficial to the Washington sweet cherry industry as a whole. There was no opposition expressed with respect to this proposal.
A new § 923.43, Contributions, should be added to the order to allow the Washington Cherry Marketing Committee to accept voluntary contributions for the purpose of funding marketing research and promotion (including paid advertising), and production research projects. Such contributions should be free from any encumbrances by the donor so that the Committee would retain complete control of their use.
Currently, the marketing order program does not contain authority for the Committee to accept contributions. All marketing order activities are funded through handler assessments. Witnesses stated that the industry would benefit from this authority as contributions from groups and businesses could provide the industry with additional research and marketing opportunities.
The record shows that contributions could come from equipment and machinery dealers, fertilizer, chemical or seed dealers, container manufacturers and dealers, and companies that currently have their own marketing activities. One witness stated that this authority would have healthy, long-range effects on the industry. Ultimately, this would benefit all growers, handlers and consumers of Washington sweet cherries.
Witnesses testified that voluntary contributions should only be accepted with the understanding that the Committee would retain full discretion over how those funds would be used. Witnesses stated that project selection and spending decisions would rest with the Committee. While a donor could
Record evidence supports revising the marketing order to incorporate the authority to accept voluntary contributions. There was no opposition given to this proposal.
The marketing order should be revised to add a public member and alternate public member to the Washington Cherry Marketing Committee. This amendment would necessitate revising language in § 923.20, Establishment and membership, and 923.22, Nomination.
If this change were implemented, Committee membership would increase from 16 to 17 members. The public member could not have any financial interest in the Washington sweet cherry industry. The public member would have the same rights and responsibilities as other Committee members, including reimbursement for expenses as approved by the Committee.
Witnesses stated that the addition of a public member to the Committee would be beneficial in that it would bring a non-industry perspective to Committee deliberations and decision-making. The public member and alternate should be persons who can present constructive criticism when needed, and who can work together with other Committee members to build a bridge for better understanding between consumers and agriculture.
The evidence of record is that a non-industry perspective could be especially useful in deliberations over production research and promotion activities. Research and promotion activities are aimed not only at improving production and harvest techniques, but also product quality. High quality is important to the industry's ability to boost consumer demand and maintain adequate grower returns. Moreover, promotion activities are intended to attract or increase consumer interest in the product. Often promotion activities include an educational element about the benefits of the product, or ideas for using the product in cooking or food presentation. A public member could help the Committee to decide which types of production research or promotion activities would be most beneficial in the eyes of the consumer.
Persons serving as public representatives should not be, at the time of selection, nomination or during the term of office, engaged in the commercial production, buying, grading, processing of any agricultural product, nor should they be an officer, director, member, or employee of any firm engaged in the production or processing of any agricultural product. Should the public member or alternate public member become involved in such activities at any time during their term of office, they would become ineligible to continue to serve and a replacement would be nominated for the Department's appointment.
Testimony indicates that the initial public member and alternate public member should be nominated at the first Committee meeting following the selection of industry members for a new term of office, which starts on April 1. Normally, the Committee holds its marketing policy and organization meeting during May of each year, so such meeting could be used to nominate the public member and the alternate.
Witnesses recognized that some delay would occur in the nomination and seating of the initial public member and alternate public member, as recommendation of those candidates would occur after the grower and handler members the Committee were appointed. Witnesses stated that it would be better to have the public member positions vacant for a short period of time until the new Committee members are seated by the Department, rather than create a second later term of office just applicable to the public member and alternate member. This situation would only occur once since all subsequent public members and their alternates would serve until their respective successors are appointed, as is currently practiced for all Committee grower and handler members.
Record evidence supports the addition of a public member and alternate public member to the Washington Cherry Marketing Committee. No opposition to this proposal was presented at the hearing.
Section 923.21, Term of office, should be revised to establish a limit on the number of consecutive terms a person may serve on the Committee. Currently, the term of office of each member and alternate member of the Committee is three years. There are no provisions related to tenure in the marketing order. Members and alternates may serve on the Committee until their respective successors are selected and have qualified.
The record shows that USDA proposed tenure requirements for Committee members as a means to increase industry participation on the Committee, provide for more diverse membership, provide the Committee with new perspectives and ideas, and increase the number of individuals in the industry with Committee experience.
Experience with other marketing order programs suggests that a period of six years would be appropriate. Since the current term of office for Washington Cherry Marketing Committee members and alternates is two years, the Department is proposing that no member serve more than three consecutive two-year terms or a total of six years. This proposal for a limitation on tenure would not apply to alternates. Once a member has served on the Committee for three consecutive terms, or six years, the member would sit out for one year before being eligible to serve as a member again. The member could serve as an alternate during that time.
One witness testified in opposition to tenure limitations. He indicated that finding growers and handlers willing to serve on the Committee could become more difficult, and the knowledge of experienced Committee members would be difficult to replace.
The Department believes that any additional efforts necessary to find eligible growers and handlers who are willing to serve on the Committee offset by the benefits derived by broader industry participation in order operations.
Therefore, it is recommended that the order be amended to establish tenure requirements for Committee members.
Section 923.64, Termination, should be amended to require that continuance referenda be conducted every six years to ascertain industry support for the order.
Currently, there is no provision in the marketing order that requires periodic continuance referenda. The record evidence is that growers should have an opportunity to periodically vote on whether the marketing order should continue. Continuance referenda provide an industry with a means to measure grower support for the marketing order program. Experience has shown that programs need significant industry support to operate effectively. Under this proposal, the Department would consider termination of the marketing order if continuance is not favored by at least two-thirds of those voting, or at least two-thirds of the volume represented in the referendum. This is the same as that for issuance of an order. Experience in recent years indicates that six years is an appropriate
One industry witness testified in opposition to this proposal. He indicated that the industry currently has the ability to request a continuance referendum at any time, and requiring unnecessary referenda would be costly and of little value to the industry or the Department. The program has worked successfully since its inception, and growers have been supportive of the order since that time.
The Department believes that growers should have an opportunity to periodically vote on whether the marketing order should continue. Accordingly, it is recommended that the order be amended to require a continuance referendum every six years.
The Agricultural Marketing Service also proposed to make such changes as may be necessary to the order to conform to any amendment that may result from the hearing. The Department has identified no necessary conforming changes.
Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, the AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions so that small businesses will not be unduly or disproportionately burdened. Small agricultural growers have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $750,000. Small agricultural service firms are defined as those with annual receipts of less than $5,000,000.
The record shows that there are approximately 1,500 growers of sweet cherries in the production area and approximately 62 handlers subject to regulation under the order. The average production of sweet cherries in Washington State for the last three years is 64,676 tons with an average grower price of $1,943 per ton. Using this number, the average annual grower revenue is calculated to be approximately $83,777, thus indicating that the average Washington sweet cherry grower would qualify as a small entity according to the SBA definition.
Using Committee data regarding each individual handler's total shipments during the 2002 marketing year, and an estimated average FOB price of $24 per 20-pound container, 79 percent of the Washington sweet cherry handlers shipped under $5 million worth of sweet cherries, and 21 percent shipped over $5 million worth of sweet cherries. Therefore, the majority of Washington sweet cherry handlers may be classified as small entities.
The Committee is currently comprised of 10 growers and 6 handlers. Both small and large growers and handlers are members and member alternates on the Committee. Committee meetings are widely publicized in advance of the meetings and are held in a location central to the production area. The meetings are open to all industry members and all other interested persons, who are encouraged to participate in the deliberations and voice their opinions on topics under discussion.
At a May 22, 2003, full Committee meeting, all industry representatives present could present their views concerning the recommended amendments. Both large and small businesses were represented. The Committee believes that small and large entities would benefit equally from the proposed amendments.
Testimony indicates that the proposal to include paid advertising and production research under the order would assist both small and large growers and handlers in marketing Washington sweet cherry crops. While addition of this authority could result in increased assessments under the order, witnesses stated that the benefits arising from these activities, as evidenced by similar activities under the Commission, would outweigh the costs.
Similarly, the proposal to add authority for supplemental varietal assessments could require additional payments per individual variety of sweet cherry. However, witnesses stated that they believed the benefits of those research and promotion activities would outweigh the costs.
Witnesses used the example of recent Commission activities as evidence that research and promotion activities would lead to increased grower returns and market stability by providing tools to the industry to address expanding production and evolving consumer trends in the industry. Witnesses were unanimous in their belief that the benefits of the Commission's activities more than outweigh the costs of these programs. They stated that the same results would be expected from any such activities conducted under the order.
The proposal to add authority for the Committee to accept voluntary contributions would not result in any increased costs or burdens to the industry. In fact, witnesses stated that this authority would benefit the industry greatly as it could provide for additional funding sources of research and promotional activities. Safeguards against donor control over the use of voluntary contributions would ensure that these funds would be used in the best interest of the industry. The Committee would decide how to use those funds, and the decision-making process would be open to industry input and feedback.
The proposal to add a public member and alternate public member to the Committee is not expected to result in any substantial cost increases. While the new members would be entitled to reimbursement for their expenses, the additional cost would be minimal. Additionally, the benefit of adding a non-industry, consumer perspective to Committee deliberations and decision-making could prove very beneficial. Witnesses stated that this additional perspective would improve the Committee's understanding of the consumer in the marketplace and could enhance Committee activities aimed at increasing consumer demand for Washington sweet cherries.
The proposed amendment to add tenure requirements for Committee members would allow more persons the opportunity to serve as members of the Committee. It would provide for more diverse membership, provide the Committee with new perspectives and ideas, and increase the number of individuals in the industry with Committee experience.
The proposal to require continuance referenda on a periodic basis to ascertain grower support for the order would allow growers to vote on whether to continue the operation of the program. The referenda would be conducted by USDA.
Interested persons were invited to present evidence at the hearing on the probable regulatory and informational impacts of the proposed amendments to the order on small entities. The record evidence is that while some minimal costs may occur, those costs would be outweighed by the benefits expected to accrue to the sweet cherry industry in designated counties of Washington.
The Department has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule. All of the amendments are designed to enhance the
A 30-day comment period is provided to allow interested persons to respond to this proposal. Thirty days is deemed appropriate so that this rulemaking may be completed prior to the 2005-2006 season. All written exceptions timely received will be considered and a grower referendum will be conducted before these proposals are implemented.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), AMS announces its intention to request OMB approval of any increase in information collection burden for the Washington Cherry marketing order.
The Washington Cherry Marketing Committee (Committee) recommended adding a public member and alternate public member to the Committee. In conformance with the recommendation, a confidential qualification and acceptance statement would be used to nominate and appoint the public and alternate public committee members. This form is based on the currently approved Confidential Background Statement for the Washington Cherry Marketing Committee. If this proposal is implemented the form would only be used after approval by OMB.
The amendments to Marketing Order 923 proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect. If adopted, the proposed amendments would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this proposal.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Department a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, the USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Department's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
The findings hereinafter set forth are supplementary to the findings and determinations which were previously made in connection with the issuance of the marketing agreement and order; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.
(1) The marketing agreement and order, as amended, and as hereby proposed to be further amended, and all of the terms and conditions thereof, would tend to effectuate the declared policy of the Act;
(2) The marketing agreement and order, as amended, and as hereby proposed to be further amended, regulate the handling of sweet cherries grown in the production area in the same manner as, and are applicable only to, persons in the respective classes of commercial and industrial activity specified in the marketing agreement and order upon which a hearing has been held;
(3) The marketing agreement and order, as amended, and as hereby proposed to be further amended, are limited in their application to the smallest regional production area which is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;
(4) The marketing agreement and order, as amended, and as hereby proposed to be further amended, prescribe, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of sweet cherries grown in the production area; and
(5) All handling of sweet cherries grown in the production area as defined in the marketing agreement and order, is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.
Cherries, Marketing agreements, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 923, is proposed to be amended as follows:
1. The authority citation for 7 CFR part 923 continues to read as follows:
7 U.S.C. 601-674.
2. Section 923.20 is revised to read as follows:
There is hereby established a Washington Cherry Marketing Committee consisting of seventeen members, each of whom shall have an alternate who shall have the same qualifications as the member for whom he or she is an alternate. Ten members and their respective alternates shall be growers or officers or employees of corporate growers. Six of the members and their respective alternates shall be handlers, or officers or employees of handlers. One member and his or her respective alternate shall be a public member who is neither a grower nor a handler. The ten members of the committee who are growers or employees or officers of corporate growers are referred to in this part as “grower members” of the committee; and six members of the committee who shall be handlers, or officers or employees of handlers are referred to in this part as “handler members” of the committee. Five of the grower members and their respective alternates shall be growers of cherries in District 1, and five of the grower members and their respective alternates shall be growers of cherries in District 2. Three of the handler members and their respective alternates shall be handlers of cherries in District 1, and three of the handler members and their representative alternates shall be handlers of cherries in District 2.
3. Revise § 923.21 to read as follows:
The term of office of each member and alternate member of the committee shall be for two years beginning April 1 and ending March 31. Members and alternate members shall serve in such capacities for the portion of the term of office for which they are selected and have qualified and until their respective successors are selected and have qualified. Committee members shall not serve more than three consecutive terms. Members who have served for three consecutive terms must leave the committee for at least one year before becoming eligible to serve again.
4. Amend § 923.22 by adding a new paragraph (b)(4) to read as follows:
(b) * * *
(4) The grower and handler members of the committee shall nominate the public member and alternate public member at the first meeting following the selection of members for a new term of office.
5. In § 923.41, paragraph (c) is redesignated as paragraph (d) and a new paragraph (c) is added to read as follows:
(c) Based upon a recommendation of the committee or other available information, the Secretary shall fix the rate of assessment that handlers shall pay on all cherries handled during each fiscal period, and may also fix supplemental rates of assessment on individual varieties or subvarieties to secure sufficient funds to provide for projects authorized under § 923.45. At any time during the fiscal period when it is determined on the basis of a committee recommendation or other information that a different rate is necessary for all cherries or for any varieties or subvarieties, the Secretary may modify a rate of assessment and such new rate shall apply to any or all varieties or subvarieties that are shipped during the fiscal period.
6. A new § 923.43 is added to read as follows:
The committee may accept voluntary contributions but these shall only be used to pay expenses incurred pursuant to § 923.45. Furthermore, such contributions shall be free from any encumbrances by the donor and the committee shall retain complete control of their use.
7. Section § 923.45 is revised to read as follows:
The committee, with the approval of the Secretary, may establish or provide for the establishment of projects involving production research, marketing research and development, and marketing promotion, including paid advertising, designed to assist, improve, or promote the marketing, distribution, consumption or efficient production of cherries. The expense of such projects shall be paid from funds collected pursuant to §§ 923.41 and 923.43.
8. Section 923.64 is amended by:
A. Revising paragraph (c).
B. Redesignating paragraph (d) as paragraph (e).
C. Adding a new paragraph (d).
The revisions read as follows:
(c) The Secretary shall terminate the provisions of this part whenever it is found that such termination is favored by a majority of growers who, during a representative period, have been engaged in the production of cherries:
(d) The Secretary shall conduct a referendum six years after the effective date of this section and every sixth year thereafter, to ascertain whether continuance of this subpart is favored by growers. The Secretary may terminate the provisions of this subpart at the end of any fiscal period in which the Secretary has found that continuance of this subpart is not favored by growers who, during a representative period determined by the Secretary, have been engaged in the production of cherries in the production area.
Federal Aviation Administration, DOT.
Supplemental notice of proposed rulemaking; reopening of comment period.
This document revises an earlier proposed airworthiness directive (AD), applicable to all Airbus Model A300 B2 and B4 series airplanes, that would have superseded an existing AD that currently requires determining the part and amendment numbers of the variable lever arm (VLA) of the rudder control system to verify that the parts were installed using the correct standard, and corrective actions if necessary. For certain VLAs, the proposed AD would also have required repetitive inspections for damage, and replacement with a new VLA if necessary. This new action revises the proposed AD by mandating a terminating modification of the VLA, which would end the repetitive inspections. This new action also changes the applicability in the proposed AD. The actions specified by this new proposed AD are intended to prevent failure of both spring boxes of certain VLAs due to corrosion damage, which could result in loss of rudder control and consequent reduced controllability of the airplane. This action is intended to address the identified unsafe condition.
Comments must be received by October 26, 2004.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-16-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 Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France. 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
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-16-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-16-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to all Airbus Model A300 B2 and B4 series airplanes, was published as a notice of proposed rulemaking (NPRM) (hereafter referred to as the “original NPRM”) in the
In the preamble to the original NPRM, the FAA indicated that the actions required by that NPRM were considered “interim action” and that further rulemaking action was being considered. We have now determined that further rulemaking is indeed necessary, and this supplemental NPRM follows from that determination.
Since the issuance of the original NPRM, the Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, issued French airworthiness directive 2004-091(B), dated June 23, 2004. The French airworthiness directive mandates modification of the VLA, which ends the repetitive inspections required by French airworthiness directive 2003-006(B), dated January 8, 2003 (referenced in the original NPRM). The revised French airworthiness directive supersedes French airworthiness directive F-2003-006(B).
Airbus has issued Service Bulletin A300-27-0198, dated December 1, 2003, which describes procedures for modification of the VLA of the rudder control system. The modification includes installation of new, improved spring boxes, and re-identification of certain placards. The service bulletin specifies that accomplishing the modification eliminates the need for the repetitive inspections specified in Airbus Service Bulletin A300-27-0196, Revision 01, dated November 13, 2002 (which was referenced in the NPRM as the appropriate source of service information for accomplishment of the inspections and corrective actions). The service bulletin also describes procedures for a functional test of the VLA unit. The service bulletin references Goodrich Actuation Systems Service Bulletin 27-21-1H, dated December 8, 2003, as an additional source of service information for accomplishing the modification.
Since these changes expand the scope of the originally proposed rule, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.
About 33 airplanes of U.S. registry would be affected by this proposed AD.
The actions that are currently required by AD 2001-22-02, and retained in this proposed AD, take about 1 work hour per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $65 per airplane.
The new inspection that would be required by the proposed AD would take about 1 work hour per airplane to accomplish, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the new inspections on U.S. operators is estimated to be $2,145, or $65 per airplane, per inspection cycle.
The new modification that would be required by the proposed AD would take about 4 hours per airplane to accomplish, at an average labor rate of $65 per work hour. Required parts cost would be minimal. Based on these figures, the cost impact of the new modification on U.S. operators is $8,580, 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
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 39-12481 (66 FR 54416, October 29, 2001), and by adding a new airworthiness directive (AD), to read as follows:
To prevent failure of both spring boxes of the variable lever arm (VLA) due to corrosion damage, which could result in loss of rudder control and consequent reduced controllability of the airplane, accomplish the following:
(a) Within 10 days after November 13, 2001 (the effective date of AD 2001-22-02, amendment 39-12481): Determine the part and amendment numbers of the VLA of the rudder control system to verify the parts were installed using the correct standard, in accordance with Airbus All Operators Telex (AOT) A300-27A0196, dated September 20, 2001; or in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-27-0196, Revision 01, dated November 13, 2002.
(1) If the part and amendment numbers shown are not correct, as specified in the AOT or the service bulletin, before further flight, do a detailed inspection of the VLA tie rod for damage (bent or ruptured rod) in accordance with the AOT or the service bulletin.
(i) If the tie rod is damaged, replace the VLA with a new VLA in accordance with the AOT or the service bulletin. Such replacement ends the requirements of this paragraph.
(ii) If the tie rod is not damaged, no further action is required by this paragraph.
(2) If the part and amendment numbers shown are correct, no further action is required by this paragraph.
For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.”
(b) For airplanes having a VLA with any part number (P/N) other than 418473-20 or 418473-200: Within 500 flight hours after the effective date of this AD, do a detailed inspection of the tie rod for damage (bent or ruptured rod), in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-27-0196, Revision 01, dated November 13, 2002. Repeat the inspection thereafter at intervals not to exceed 1,000 flight hours, until paragraph (f) of this AD has been accomplished.
(c) If any damage is found to the VLA or the rudder control system during any inspection required by paragraph (a)(1) or (b) of this AD, before further flight, replace the VLA with a new VLA (including a follow-up test) in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-27-0196, Revision 01, dated November 13, 2002.
(d) Actions accomplished before the effective date of this AD in accordance with Airbus Service Bulletin A300-27-0196, dated September 20, 2002, are considered acceptable for compliance with the corresponding actions specified in paragraphs (a), (b), and (c) of this AD.
(e) Although Airbus Service Bulletin A300-27-0196, Revision 01, dated November 13, 2002, describes procedures for submitting certain information to the manufacturer, and for returning certain parts to the manufacturer, this AD does not require those actions.
(f) Within 24 months after the effective date of this AD: Modify the applicable VLA, as required by either paragraph (f)(1) or (f)(2) of this AD, by doing all the applicable actions in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-27-0198, dated December 1, 2003. Accomplishing this modification ends the repetitive inspections required by paragraph (b) of this AD.
(1) For any VLA having a spring box with P/N 418473-20 or 418473-200: Install a new identification plate and re-identify the VLA.
(2) For any VLA having a spring box with P/N 418473 or 418473-100: Modify the spring box and re-identify the VLA.
Airbus Service Bulletin A300-27-0198, dated December 1, 2003, references Goodrich Actuation Systems Service Bulletin 27-21-1H, Revision 3, dated December 8, 2003, as an additional source of service information for accomplishing the modification.
(g) In accordance with 14 CFR 39.19, the Manager, International Branch, FAA, ANM-116, Transport Airplane Directorate, is authorized to approve alternative methods of compliance for this AD.
The subject of this AD is addressed in French airworthiness directive F-2004-091(B), dated June 23, 2004.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Boeing Model 737-300, -400, -500, -600, -700, -700C, -800 and -900 series airplanes. This proposed AD would require modifying the wiring for the master dim and test system. For certain airplanes, this proposed AD would also require related concurrent actions as necessary. This proposed AD is prompted by a report that the master dim and test system circuit does not have wiring separation of the test ground signal for redundant equipment in the flight compartment. We are proposing this AD to prevent a single fault failure inflight from simulating a test condition and showing test patterns instead of the selected radio frequencies on the communications panels, which could inhibit communication between the flightcrew and the control tower, affecting the continued safe flight of the airplane.
We must receive comments on this proposed AD by November 19, 2004.
Use one of the following addresses to submit comments on this proposed AD.
• DOT Docket Web site: Go to
• Government-wide rulemaking Web site: Go to
• Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, room PL-401, Washington, DC 20590.
sbull By fax: (202) 493-2251.
• 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.
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207.
You can examine the contents of this AD docket on the Internet at
The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications that affect you. You can get more information about plain language at
You can examine the AD docket on the Internet at
We have received a report indicating that the master dim and test system circuit does not have wiring separation of the test ground signal for redundant equipment in the flight compartment on certain Boeing Model 737-300, -400, -500, -600, -700, -700C, -800 and -900 series airplanes. This condition could allow a single fault to simulate a test condition in the annunciators, switches, and displays in the flight compartment. A single fault failure could also simulate a test condition on the communications panels and show test patterns instead of the selected radio frequencies. The flightcrew needs to know the selected radio frequencies so they can communicate with the control tower. In flight, if test patterns appear instead of the selected radio frequencies on the communications panels, communication between the flightcrew and the control tower could be inhibited, and the continued safe flight of the airplane could be affected.
We have reviewed Boeing Special Attention Service Bulletin 737-33-1132, Revision 1, dated March 4, 2004 (for Model 737-300, -400, and-500 series airplanes). We have also reviewed Boeing Service Bulletin 737-33-1133, Revision 2, dated December 4, 2003 (for Model 737-600, -700, -700C, -800, and -900 series airplanes). These service bulletins describe procedures for modifying the wiring for the master dim and test system. The modification includes re-routing existing wiring, creating splices, and performing operational testing.
For certain airplanes, Service Bulletin 737-33-1132 specifies prior or concurrent accomplishment of Boeing Service Bulletin 737-77-1022, currently at Revision 1, dated October 26, 1989. Service Bulletin 737-77-1022 describes procedures for installing an engine instrument system (EIS), and specifies prior or concurrent accomplishment of Boeing Service Bulletin 737-77-1023,
For certain other airplanes, Service Bulletin 737-33-1133 specifies prior or concurrent accomplishment of Boeing Service Bulletin 737-26A1083, currently at Revision 1, dated November 15, 2001; and Boeing Service Bulletin 737-33-1121, currently at Revision 1, December 19, 2002. Service Bulletin 737-26A1083 describes procedures for installing a smoke detection and fire extinguishing system in the cargo compartment. Service Bulletin 737-33-1121 describes procedures for installing wiring for the test system for the audio control panel lamp.
Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. Therefore, we are proposing this AD, which would require modifying the wiring for the master dim and test system. The proposed AD would require you to use the service information described previously to perform these actions.
This proposed AD would affect about 2,868 airplanes worldwide, and 1,181 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.
For the reasons discussed above, I certify that the 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. 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.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 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. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The Federal Aviation Administration (FAA) must receive comments on this AD action by November 19, 2004.
(b) None.
(c) This AD applies to Boeing Model 737-300, -400, and -500 series airplanes listed in Boeing Special Attention Service Bulletin 737-33-1132, Revision 1, dated March 4, 2004; and Model 737-600, -700, -700C, -800, and -900 series airplanes listed in Boeing Service Bulletin 737-33-1133, Revision 2, dated December 4, 2003; certificated in any category.
(d) This AD was prompted by a report that the master dim and test system circuit does not have wiring separation of the test ground signal for redundant equipment in the flight compartment. We are issuing this AD to prevent a single fault failure inflight from simulating a test condition and showing test patterns instead of the selected radio frequencies on the communications panels, which could inhibit communication between the flightcrew and the control tower, affecting the continued safe flight of the airplane.
(e) You are responsible for having the actions required by this AD performed within
(f) Within 30 months after the effective date of this AD: Modify the wiring for the master dim test system in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-33-1132, Revision 1, dated March 4, 2004 (for Model 737-300, -400, -500 series airplanes); and Boeing Service Bulletin 737-33-1133, Revision 2, dated December 4, 2003 (for Model 737-600, -700, -700C, -800, and -900 series airplanes); as applicable.
(g) Prior to or concurrently with accomplishment of paragraph (f) of this AD, do the actions specified in Table 1 of this AD, as applicable.
(h) Actions accomplished before the effective date of this AD in accordance with Boeing Special Attention Service Bulletin 737-33-1132, dated March 20, 2003; Boeing Service Bulletin 737-33-1133, dated December 19, 2002; or Boeing Service Bulletin 737-33-1133, Revision 1, dated April 17, 2003, as applicable, are considered acceptable for compliance with the corresponding actions specified in this AD.
(i) The Manager, Seattle Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
Bureau of Customs and Border Protection, Department of Homeland Security.
Proposed rule.
As a result of technological advances available to those pirating copyrighted works, there has been a global increase in the importation of piratical works. Because of this increased risk to owners of protected copyrighted works and because most owners of copyrights in non-U.S. works do not register their copyrights as a matter of course, the Bureau of Customs and Border Protection (CBP) is proposing regulations that allow CBP to be more responsive to claims of piracy.
The CBP Regulations currently require that in order to be eligible for border protection all claims to copyright, foreign and domestic, be registered with the U.S. Copyright Office. This document proposes to allow sound recordings and motion pictures or similar audio-visual works to be recorded with CBP while pending registration with the U.S. Copyright Office. This document also proposes to amend the CBP Regulations to enhance the protection of all non-U.S. works by allowing recordation without requiring registration with the U.S. Copyright Office. Lastly, the proposed regulations set forth changes to CBP's enforcement procedures, including, among other things, enhanced disclosure provisions, protection for live musical performances and provisions to enforce the Digital Millennium Copyright Act.
Written comments must be submitted on or before November 4, 2005.
You may submit comments, identified by RIN 1505-AB51, by either of the following methods:
• Federal eRulemaking Portal:
• Mail: Regulations Branch, Office of Regulations and Rulings, Bureau of Customs and Border Protection, 1300 Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 20229.
Comments submitted may be inspected at the Regulations Branch, Office of Regulations and Rulings, Bureau of Customs and Border Protection, 799 9th Street, NW., 5th Floor, Washington, DC.
Paul Pizzeck, Esq. or George F. McCray, Esq., Intellectual Property Rights Branch, Office of Regulations and Rulings, (202) 572-8710.
Due to a global increase in piracy and an increased risk to owners of protected copyrighted works as a result of technological advances available to those pirating such works, the Bureau of Customs and Border Protection (CBP) is proposing regulations that allow CBP to be more responsive to claims of piracy. In this document, CBP is proposing changes designed to better facilitate the recordation process with CBP for certain works and to strengthen the enforcement procedures to protect those rights.
CBP is proposing several changes to subpart D of part 133 of the CBP Regulations regarding the recordation process, as set forth below.
Presently, the CBP Regulations provide that only those claims to copyright, foreign and domestic, which have been registered with the U.S. Copyright Office may be recorded with CBP. Subparts D and E of part 133, CBP Regulations (19 CFR part 133, subparts D and E) prohibit the importation of piratical works that have been properly registered and recorded. However, piratical copies of sound recordings and motion pictures or similar audio-visual works are often found in the market before the owner of a copyright in those works can effect registration of the copyright with the U.S. Copyright Office. Although the copyrightability of these types of works is rarely a substantive issue, because of the time lapse between the application for registration and the granting of registration with the U.S. Copyright Office, significant imports of piratical articles can often occur before the copyright owner is able to secure registration with the U.S. Copyright Office.
For these types of works, it is during the periods of time prior to and immediately following the release of the work in which piracy is most likely to occur. As a result, pre-release copyright registration applications are generally avoided due to concerns about leaks arising from the sample copies submitted with the application which are made available to the public.
Securing border protection simultaneously with (or in some cases prior to) the commercial release of sound recordings and motion pictures or similar audio-visual works should help to prevent the importation into the U.S. of piratical goods. As a result, CBP is proposing to revise subparts D and E of part 133, CBP Regulations, in order to provide for border enforcement of U.S. copyrights for sound recordings and motion pictures or similar audio-visual works in which copyrightability is rarely a substantive issue, that are pending registration with the U.S. Copyright Office.
Concerning sound recordings and motion pictures or similar audio-visual works, CBP intends to accept a copy of a valid application for registration that has been filed with the U.S. Copyright Office as evidence of a copyrightable interest entitled to protection by CBP. The proposed regulations require that an applicant provide to CBP proof of registration with the U.S. Copyright Office no later than six months after the date of the application for recordation. If the applicant fails to provide proof of registration in a timely manner, CBP would cancel the related recordation. In addition, CBP proposes to reserve the right to cancel any recordation which it determines to have been obtained in any manner contrary to law. Permitting copyright owners of those certain categories of works for which copyrightability is rarely a substantive issue to make an initial recordation with CBP based on a filed, pending application for copyright registration rather than a perfected certificate of registration, will allow CBP to prevent the importation of piratical goods prior to the completion of the registration process.
Accordingly, in § 133.32 which covers the recordation procedure for protected copyrighted works, a new paragraph (b)(4) is proposed to include claims to copyright in sound recordings and motion pictures or similar audio-visual works which are not yet registered with the U.S. Copyright Office.
CBP notes that the above proposed change may result in an increased number of applications for recordation and, as each application is required to be accompanied by a $190 fee, an increased administrative burden in the processing of an increased number of individual payments. In order to mitigate processing costs for business and government, we are considering allowing alternative fee arrangements. For example, one annual payment may be made in lieu of individual application fees. The difference between the amount paid per recordation under the alternative arrangement and the standard single recordation fee (currently, $190) would not exceed the difference in processing costs. We are particularly interested in any comments on the fairness, equity, and potential administrative efficiency of such arrangements under 31 U.S.C. 9701.
Under the current regulations, in order to seek protection from the importation of piratical copies, non-U.S. claimants holding a copyright entitled to enforcement are required to provide CBP with a valid certificate of registration issued by the U.S. Copyright Office and to record such registration with CBP. However, because most countries do not have registration systems and most non-U.S. copyright claimants do not register their works in the U.S. as a matter of course, and at the same time, due to technological advances available for pirating such works, there is an overall global increase in piracy and increased risk to owners of protected copyrighted works originating from throughout the world. Accordingly, CBP believes that it would be appropriate for non-U.S. claimants holding copyrights in such works to be entitled to record their claims with CBP regardless of whether they have registered their copyrights with the U.S. Copyright Office at the time of recordation.
Accordingly, in § 133.31(a) covering protected copyrighted works eligible for recordation, new regulatory text is proposed to include, among other things, certain claims to copyright in non-U.S. works that have not been registered with the U.S. Copyright Office, but which are recognized under the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention).
Based on the above described changes, CBP is also proposing to amend § 133.32 of the CBP Regulations (19 CFR 133.32) which outlines the procedure for recordation and the information required in all applications to record a copyright with CBP. To carry out CBP protection of claims to copyright in certain U.S. works pending registration with the U.S. Copyright Office and claims to copyright in non-U.S. works which are entitled to protection under 17 U.S.C. 104, new paragraphs (b)(3) and (4) are proposed to be added to expand § 133.32 to provide for such claims.
New paragraph (b)(3) would permit owners of claims to copyrights in non-U.S. works to apply for recordation with CBP for the enforcement of such claims, even if not registered with the U.S. Copyright Office. This new paragraph
New paragraph (b)(4) would allow owners of claims to copyrights in U.S. sound recordings and motion pictures or similar audio-visual works for which copyrightability is rarely a substantive issue and for which securing border protection on an immediate basis is essential for purposes of preventing the importation of piratical articles, to record these works with CBP when registration is pending with the U.S. Copyright Office. The filing of such a claim will require the submission to CBP of a copy of a valid registration application officially filed with the U.S. Copyright Office for the specific work. Claims for protection made pursuant to either provision ((b)(3) or (4)) will be subject to independent verification by CBP, which will maintain sole discretion as to whether to accept such claims for enforcement.
In addition, to further clarify and simplify the recordation process and reduce the burden on those applying for recordation of claims to copyright, CBP is proposing other changes to §§ 133.32 and 133.33 which would: (1) Allow a “duly appointed representative” to record a claim to copyright for the copyright owner thereby eliminating the need for the copyright owner to personally file the application; (2) eliminate the requirement that an applicant supply four additional photocopies (or likenesses) of the protected copyrighted work with the application; (3) update the address to which completed applications are submitted; and (4) update the name of the agency to which fees are submitted for recordation of copyright to reflect the new name of the former U.S. Customs Service.
CBP is also proposing to require information regarding the citizenship of a copyright owner. Moreover, the current regulation requires that photographic or other likenesses be provided with an application for recordation in order to ensure that CBP has adequate information regarding a claim to copyright to enforce such rights. Works such as books, magazines, periodicals and sound recordings are excepted from this requirement. CBP is proposing to require that, as appropriate, either a sample, a digital image, or photograph of the protected work be submitted with the application to record the copyright. CBP is further proposing to require samples of sound recordings.
CBP is proposing several changes to subpart E of part 133 of the CBP Regulations to achieve consistency with the above proposed changes concerning subpart D of part 133. The proposed changes, as set forth below, also serve to strengthen CBP's ability to enforce the prohibition against the importation of piratical articles.
Section 133.42(a) currently provides that “Infringing copies or phonorecords are `piratical' articles.” In order to more accurately and completely define “piratical articles,” CBP is proposing to revise paragraph (a) of § 133.42 to define “piratical articles” as those which constitute unlawful copies (made without the authorization of the copyright owner) or phonorecords of “protected copyrighted works.” The proposed amended language defines “protected copyrighted works” to encompass works registered with the U.S. Copyright Office and recorded with CBP, non-U.S. works which are entitled to protection under 17 U.S.C. 104 (including sound recordings and motion pictures or similar audio-visual works) for which relevant ownership information is recorded with CBP, and certain U.S. works pending registration with the U.S. Copyright Office that are duly recorded with CBP.
CBP has determined that, in order to pursue all avenues of relief from copyright infringement, including seeking criminal prosecution of violators and pursuing private civil remedies for copyright infringement, an affected copyright owner must have access to certain information regarding parties attempting to import infringing piratical articles. In cases involving seizures of articles that circumvent copyright protection systems (technological measures) under the Digital Millennium Copyright Act (Pub. L. 105-304, 112 Stat. 2860, DMCA) (
Currently § 133.42(d) provides that, when CBP seizes goods under that section, CBP will disclose to the owner of the copyright:
(1) The date of importation;
(2) The port of entry;
(3) A description of the merchandise;
(4) The quantity involved;
(5) The name and address of the manufacturer;
(6) The country of origin of the merchandise;
(7) The name and address of the exporter; and
(8) The name and address of the importer.
CBP is proposing to amend § 133.42(d) to provide that, in addition to the information above, when CBP seizes goods under that section, CBP will also disclose to the copyright owner or, for merchandise seized pursuant to § 133.42(c)(3), to the producer of the copyright protection system:
(9) Information from available shipping documents (such as manifests, air waybills, and bills of lading), including mode or method of shipping (such as airline carrier and flight number) and the intended final destination of the merchandise.
Section 133.43 contains the current procedures to be employed when CBP suspects that certain articles may be piratical articles. The current § 133.43 provides for: (1) Notice of detention of suspected articles to an importer and to a copyright owner, including the disclosure of certain information; (2) the disclosure of samples of suspected articles to the copyright owner; (3) the release of the goods in the case of inaction by the copyright owner and in cases where the copyright owner makes a written demand for the exclusion of the suspected articles, a bonding requirement and exchange of briefs process; and (4) alternative procedures to the administrative process (court action). In general, the current regulations provide that upon notification by a port director that CBP has reason to believe that an imported article may be a piratical copy or phonorecord of a copyrighted work, the
CBP believes that the existing procedures contained in § 133.43 are an outdated and inefficient mechanism to address the situation where CBP has a suspicion that certain goods may be piratical. These provisions are rarely used and unduly burdensome on CBP and all other parties involved. Essentially, these procedures interfere with CBP's ability to conduct the required investigation in a timely and efficient manner. Moreover, the process inhibits CBP from applying its expertise in an expedient manner to determine whether or not merchandise is piratical. Most importantly, these procedures are ineffective in aiding CBP in resolving the issue of whether certain merchandise is indeed piratical.
Likewise, § 133.44 outlines the actions to be taken when a claim of piracy under § 133.43 is sustained or denied.
Accordingly, CBP is proposing to remove § 133.43 and § 133.44 in their entirety. Instead, CBP is proposing regulations allowing CBP to detain merchandise when CBP has reasonable suspicion to believe that the merchandise is piratical and to seize merchandise that it determines to be piratical. In addition, the proposed regulations would facilitate the exchange of information between the copyright owners and CBP in order to assist CBP in making this determination.
CBP is proposing to add regulatory text in a newly created paragraph (b)(2) to § 133.42 that specifies CBP's power to detain articles that appear to be piratical copies of sound recordings, motion pictures, or similar audio-visual works to conduct further investigation. Accordingly, paragraph (b)(2) in § 133.42 proposes to allow CBP to detain, for up to 30 days, sound recordings and motion pictures or similar audio-visual works prior to registration with the U.S. Copyright Office when CBP has reasonable suspicion to believe that they constitute piratical copies even though there is no underlying copyright registration or recordation on file with CBP. Reasonable suspicion that certain articles are piratical may be based upon factors such as poor product quality, substandard packaging, irregular invoicing, methods of shipment, or other indicia of piracy.
Section 133.42(e) of the CBP Regulations (19 CFR 133.42(e)) allows CBP to provide a sample of suspect merchandise to the owner of the copyright. The copyright owner seeking to obtain a sample is required to furnish a bond to CBP. CBP is proposing to allow port directors, at their discretion, to waive the bond requirement where the value of the sample is less than $50.00.
In 1998, Congress enacted the DMCA. Among other things, the DMCA prohibits the circumvention of technological measures used by copyright owners to protect their works. A technological measure ”effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
Although the current CBP Regulations do not specifically provide for detention and seizure of articles that constitute violations of the DMCA, CBP has implemented the DMCA by providing CBP personnel with internal enforcement guidelines and advice on how to enforce DMCA violations. Where CBP finds that certain devices violate the DMCA, the goods are subject to seizure and forfeiture under 19 U.S.C. 1595a(c)(2)(C) for a violation of the DMCA (17 U.S.C. 1201(b)(1)).
Accordingly, CBP is proposing to include provisions for the detention and seizure of articles that constitute violations under the DMCA to the enforcement provisions of subpart E. Specifically, CBP is proposing to add paragraph (b)(3) to § 133.42 to provide for the detention of articles that CBP reasonably believes constitute violations of 17 U.S.C. 1201(b)(1). Such detentions will be limited to 30 days in duration. In the event that the Intellectual Property Rights (IPR) Branch within CBP's Office of Regulations & Rulings determines that such detained articles violate 17 U.S.C. 1201(b)(1), CBP will then seize them and institute forfeiture proceedings in accordance with part 162 of chapter I of the CBP Regulations. Articles determined by the IPR Branch not to violate 17 U.S.C. 1201(b)(1), will be released.
CBP is also proposing to add paragraph (c)(3) to § 133.42 to provide for the seizure of articles that the IPR Branch determines to violate 17 U.S.C. 1201(b)(1). Importers may petition for relief from the seizure and forfeiture under the provisions of part 171 of chapter I. Articles that have been seized and forfeited to the U.S. Government under part 133 will be disposed of in accordance with § 133.52(b).
Section 2319A of title 18 (18 U.S.C. 2319A) states that copies of live musical performance that are “fixed” outside of the U.S. without the consent of the performer or performers involved are subject to seizure and forfeiture in the same manner as property imported in violation of the customs laws. Although CBP has had enforcement guidelines in place for several years, CBP has not promulgated regulations implementing section 2319A.
Accordingly, CBP is proposing to add, at § 133.52(c)(2)(iii), recordings of live musical performances determined by CBP to be in violation of 18 U.S.C. 2319A to the types of sound recordings subject to seizure.
Before adopting this proposed regulation as a final rule, consideration will be given to any written comments timely submitted to CBP, including comments on the clarity of this proposed rule and how it may be made easier to understand. Comments submitted will be available for public inspection in accordance with the Freedom of Information Act (5 U.S.C. 552) and § 103.11(b), CBP Regulations (19 CFR 103.11(b)), on normal business days between the hours of 9 a.m. and 4:30 p.m. at the Regulations Branch, Office of Regulations and Rulings, Bureau of Customs and Border Protection, 799 9th Street, NW., 5th Floor, Washington, DC. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at (202) 572-8768.
This document does not meet the criteria for a “significant regulatory action” as specified in E.O. 12866.
Pursuant to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
The authority to approve regulations concerning copyright enforcement, was retained by the Secretary of the Treasury. The signing authority for these amendments, therefore, falls under § 0.1(a)(1), CBP Regulations (19 CFR 0.1(a)(1)). Accordingly, this document is signed by the Secretary of Homeland Security (or his or her delegate) and the Secretary of the Treasury (or his or her delegate).
The collection of information in this document is contained in § 133.32(b) of title 19 (19 CFR 133.32(b)). Under § 133.32(b), the information would be required and used to record copyrights with CBP for border enforcement protection of copyrights. The collection of this information would ensure that CBP has adequate information regarding a claim to copyright in order to protect the copyright owner's rights.
The collection of information encompassed within this proposed rule has been submitted to the Office of Management and Budget (OMB) for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). An agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB.
Comments on the collection of information should be sent to the Office of Management and Budget, Attention: Desk Officer of the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503. A copy should also be sent to the Regulations Branch, Office of Regulations and Rulings, Bureau of Customs and Border Protection, 1300 Pennsylvania Avenue, NW. (Mint Annex), Washington, DC 20229. Comments should be submitted within the time frame that comments are due regarding the substance of the proposal.
Comments are invited on: (a) Whether the collection is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of the 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 startup costs and costs of operations, maintenance, and purchases of services to provide information.
Part 178, CBP Regulations (19 CFR part 178), containing the list of approved information collections, would be revised to add an appropriate reference to 133.32(b), upon adoption of the proposal as a final rule.
Copying or simulating trademarks, Copyrights, Counterfeit trademarks, Customs duties and inspection, Detentions, Fees assessment, Imports, Labeling, Penalties, Piratical articles, Prohibited merchandise, Reporting and recordkeeping requirements, Restricted merchandise, Seizures and forfeitures, Trademarks.
It is proposed to amend part 133 of the Customs and Border Protection Regulations (19 CFR part 133), as discussed above and set forth below. For the reasons stated in the preamble, part 133 of the CBP Regulations (19 CFR part 133) is proposed to be amended to read as follows:
1. The general authority citation for part 133 and the specific citation for § 133.42 is revised to read as follows:
15 U.S.C. 1124, 1125; 17 U.S.C. 101, 106, 501, 601, 602, 603; 19 U.S.C. 66, 1499, 1595a, 1526, 1624; 31 U.S.C. 9701.
Section 133.42 also issued under 17 U.S.C. 1201(b), 18 U.S.C. 2319A.
2. The heading to subpart D is revised to read as follows:
3. Section 133.31 is revised to read as follows:
(a)
(1) Non-expired claims to copyright in U.S. works which are registered with the U.S. Copyright Office and recorded with CBP;
(2) Claims to copyright in non-U.S. works entitled to protection under 17 U.S.C. 104 which are recorded with CBP; and
(3) Claims to copyright in sound recordings and motion pictures or similar audio-visual works eligible for recordation under the provisions of § 133.32.
(b)
(c)
4. Section 133.32 is revised to read as follows:
(a)
(b)
(i) The name, complete business address, and citizenship of the copyright owner (or owners) or claimants to copyright for protected works (if a partnership, the citizenship of each partner; if an association or corporation, the state, country, or other political jurisdiction within which it was organized, incorporated, or created);
(ii) A complete description of the rights asserted which adequately identifies the work including, as appropriate, either: a sample of the article(s) containing the claimed protected work; a digital image of same; or a photograph of same reproduced on paper no larger than 8
(iii) The foreign title of the work, if different from the U.S. title;
(iv) In the case of copyright in a sound recording, a statement setting forth the name(s) of the performing artist(s) and any other information identifying the content thereof appearing on the reproduction surface of the sound recording or its label or container; and
(v) The place(s) of manufacture of genuine copyrighted articles and the identity of the manufacturer(s).
(2) For claims to copyright in U.S. works which have been registered with the U.S. Copyright Office, recordation applications must also contain an additional certificate of registration issued by the U.S. Copyright Office. Where the name of the applicant differs from the name of the copyright owner identified in the registration certificate issued by the U.S. Copyright Office, the application must be accompanied by a certified copy of any assignment, exclusive license, or other document showing that the applicant has acquired an ownership interest in the copyright.
(3) For claims to copyright in non-U.S. works, including sound recordings and motion pictures or similar audio-visual works, entitled to protection under 17 U.S.C. 104, recordation applications must also contain a written affidavit (in English), appropriately sworn to by a duly authorized party, validating the existence, ownership, and nature of the rights claimed. Claims for protection made under this provision are subject to independent verification by CBP, which maintains sole discretion as to whether to accept such claims for enforcement. CBP may require additional information where the written affidavit fails to provide sufficient clarity as to the nature or ownership of the work for which enforcement is being sought.
(4) For claims to copyright in U.S. sound recordings and motion pictures or similar audio-visual works pending registration with the U.S. Copyright Office, recordation applications must also contain a copy of a valid registration application with respect to the work and acceptable proof that such has been officially filed with the U.S. Copyright Office. Claims for protection made under this section are subject to independent verification by CBP, which maintains sole discretion as to whether to accept such claims for enforcement. CBP may require additional information where the copy of the registration application provided fails to provide sufficient clarity as to the nature or ownership of the work for which enforcement is being sought. The applicant must provide proof of registration with the U.S. Copyright Office no later than six months after the date of the application for recordation. Such proof will consist of an “additional certificate of registration” (
(c) CBP reserves the right to cancel any recordation which it determines has been obtained in any manner contrary to law.
(d)
5. Section 133.33 is removed and reserved.
6. The heading to subpart E is revised to read as follows:
7. Section 133.42 is revised to read as follows:
(a)
(1) U.S. works registered with the U.S. Copyright Office and duly recorded with CBP pursuant to § 133.32;
(2) Non-U.S. works that are protected under 17 U.S.C. 104 (including sound recordings and motion pictures or similar audio-visual works) and where relevant ownership information is recorded with CPB pursuant to § 133.32;
(3) U.S. sound recordings and motion pictures or similar audio-visual works which have been duly recorded with CBP pursuant to § 133.32.
(b)
(1)
(2)
(3)
(c)
(1)
(ii) Imported articles detained pursuant to § 133.42(b)(1) that are determined by CBP to constitute piratical copies are subject to seizure. After seizure, piratical goods are subject to forfeiture proceedings in accordance with part 162 of this chapter. CBP will notify the importer of the seizure in accordance with part 162 of this chapter.
(2)
(ii) Imported articles which have been detained pursuant to § 133.42(b)(2), for which a claim to copyright has been recorded with CBP within 30 days after the date on which the suspect articles were detained, that are determined by CBP to constitute piratical copies are subject to seizure. After seizure, piratical goods are subject to forfeiture proceedings in accordance with part 162 of this chapter. CBP will notify the importer of the seizure in accordance with part 162 of this chapter.
(iii) Recordings of live musical performances determined by CBP to be in violation of 18 U.S.C. 2319A will be subject to seizure regardless of the recordation of any right with CBP. After seizure, piratical goods are subject to forfeiture proceedings in accordance with part 162 of this chapter. CBP will notify the importer of the seizure in accordance with part 162 of this chapter.
(3)
(d)
(1) The date of importation;
(2) The port of entry;
(3) A description of the merchandise;
(4) The quantity involved;
(5) The name and address of the manufacturer;
(6) The country of origin of the merchandise, if known;
(7) The name and address of the exporter;
(8) The name and address of the importer; and
(9) Information from available shipping documents (such as manifests, air waybills, and bills of lading), including mode or method of shipping (such as airline carrier and flight number) and the intended final destination of the merchandise.
(e)
(f)
8. Section 133.43 is removed and reserved.
9. Section 133.44 is removed and reserved.
10. Section 133.46 is revised to read as follows:
If CBP determines that articles which have been released from CBP custody are subject to the prohibitions or restrictions of this subpart, the appropriate field officer will promptly make demand for redelivery of the articles pursuant to § 141.113 of this chapter, under the terms of the bond on CBP Form 301, containing the bond conditions set forth in § 113.62 of this chapter. If the articles are not redelivered to CBP custody, a claim for liquidated damages may be made in accordance with § 141.113(h) of this chapter.
Food and Drug Administration, HHS.
Notice of public meeting; request for comments.
The Food and Drug Administration (FDA) is announcing a public meeting to discuss the use of certain radioactive drugs for research purposes without an investigational new drug application (IND) under the conditions set forth in FDA regulations (typically, use of radioactive drugs to determine drug disposition in the body). We are seeking public input on the potential need to modify the conditions under which these radioactive drugs are studied in light of the scientific and technological developments since we adopted the regulations in 1975.
The public meeting will be held on November 16, 2004, from 8 a.m. to 4 p.m. Submit electronic requests to speak plus a presentation abstract by October 19, 2004, to Maria R. Walsh. Submit final presentations and requests for special accommodations (due to disability) by November 2, 2004, to Maria R. Walsh. Submit written or electronic comments by January 16, 2005, to Division of Dockets Management.
The public meeting will be held at the CDER Advisory Committee Conference Room, rm. 1066, 5630 Fishers Lane, Rockville, MD 20857.
You may submit comments, identified by Docket No. 2004N-0432, by any of the following methods:
• Federal eRulemaking Portal:
• Agency Web site:
• E-mail:
• FAX: 301-827-6870.
• Mail/Hand delivery/Courier [For paper, disk, or CD-ROM submissions]: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
Transcripts of the public meeting will be available for review at the Division of Dockets Management (see
Maria R. Walsh, Center for Drug Evaluation and Research (HFD-103), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-3139, FAX 301-480-3761, e-mail:
We are announcing a public meeting to discuss research on radioactive drugs that is conducted under § 361.1 (21 CFR 361.1). We added this section to FDA regulations in 1975 (40 FR 31298 at 31308, July 25, 1975). Under § 361.1, certain radioactive drugs (drugs that exhibit spontaneous disintegration of unstable nuclei with the emission of nuclear particles or photons) are considered generally recognized as safe and effective under specified conditions of use when administered to human research subjects for certain basic research uses. These uses include studies intended to obtain basic information regarding the metabolism (including pharmacokinetics,
In general, to conduct studies using radioactive drugs under § 361.1, an FDA-approved Radioactive Drug Research Committee (RDRC) must first conclude the following:
1. The pharmacological dose is limited such that the amount of active ingredient or ingredients administered is known not to cause any clinically detectable pharmacological effect, based on data available from published literature or from other valid human studies (§ 361.1(b)(2) and (d)(2)).
2. The radiation dose is limited such that the amount of radioactive material administered is the smallest radiation dose practical to perform the study without jeopardizing the benefits obtained from the study, and the dose, for adult subjects, does not exceed the following:
3. The design and quality of the study and the importance of the information it seeks to obtain justify the exposure of research subjects to radiation (§ 361.1(b)(1)(iii)).
4. The investigator has appropriate qualifications for the conduct of a study involving radioactive drugs (§ 361.1(d)(3)).
5. The investigator has the appropriate licensure for handling radioactive materials (§ 361.1(d)(4)).
6. The mechanisms for selecting research subjects and obtaining informed consent are appropriate (§ 361.1(d)(5)).
7. The radioactive drug to be administered meets appropriate chemical, pharmaceutical, radiochemical, and radionuclidic standards for identity, strength, quality, and purity; and radioactive drugs for parenteral use are prepared in sterile and pyrogen-free form (§ 361.1(d)(6)).
8. The study is based on a sound rationale and is of sound design such that information of scientific value may result (§ 361.1(d)(7)).
9. There are mechanisms in place for identifying and reporting adverse reactions (§ 361.1(d)(8)).
10. The study has been reviewed and approved by an institutional review board (IRB) (§ 361.1(d)(9)).
Since we added § 361.1 in 1975, there have been numerous developments in imaging technology, pharmacology, toxicology, and dosimetry that have had a significant impact on the use of radioactive drugs. In light of these changes, we are considering whether issuance of guidance on, or even revision of, § 361.1 would be appropriate. To that end, we are holding a public meeting to obtain input on what actions we should take, if any, concerning the regulation of basic research involving radioactive drugs. To facilitate discussion at the public meeting and assist us in our review of this matter, we have the following questions concerning the application of § 361.1:
1.
a. For an active ingredient chemically manufactured in the laboratory that is also a body constituent (an endogenous substance), what percentage of estimated daily endogenous production could be considered to have no pharmacological effect? (Because heterogeneous biological products (e.g., monoclonal antibodies and therapeutic proteins such as interferon, interleukin, other cytokines, and enzymes) are foreign proteins and are assumed to have the potential to produce an antigenic response, they should be excluded from consideration unless they have been shown to have no immunologic response.)
b. For an active ingredient that is not endogenous, what animal, in vitro, and/or in vivo data would be needed to demonstrate that there is no human pharmacological effect? Is there an absolute dose that would ensure no pharmacological effect? If so, what data would be needed to support that dose?
c. How may an investigator confirm that a radioactive drug causes no clinically detectable pharmacological effect in humans in accordance with § 361.1(b)(2)? What parameters should be measured, how frequently, and what criteria should be used to determine if a pharmacologic effect has occurred?
2.
3.
• The study presents a unique opportunity to gain information not currently available, requires the use of research subjects less than 18 years of age, is without significant risk to subjects, and is supported with review by qualified pediatric consultants to the RDRC;
• The radiation dose does not exceed 10 percent of the adult radiation dose specified in § 361.1(b)(3)(i); and
• As with adult subjects, the following requirements, among others, are met: (1) The study is approved by an institutional review board (IRB) that conforms to 21 CFR part 56, (2) informed consent of the subjects' legal representative is obtained in accordance with 21 CFR part 50, and (3) the study is approved by the RDRC that assures all other requirements of § 361.1 are met.
Alternatively, when a study is conducted under an IND in accordance with part 312, the sponsor must submit to FDA the study protocol, protocol changes and information amendments, pharmacology/toxicology and chemistry information, and information regarding prior human experience with the same or similar drugs (see §§ 312.22, 312.23, 312.30, and 312.31). Additionally, § 312.32 requires that sponsors promptly review all information relevant to the safety of the drug obtained or otherwise received by the sponsor from any source, foreign or domestic. This includes information derived from any clinical or epidemiological investigations, animal investigations, commercial marketing experience, reports in the scientific literature, and unpublished scientific papers, as well as reports from foreign regulatory authorities. Section 312.32 also requires that sponsors submit IND safety reports to FDA.
a. Does § 361.1 provide adequate safeguards for pediatric subjects during the course of a research project intended to obtain basic information about a radioactive drug, or should these studies only be conducted under an IND?
b. If we assume that § 361.1 provides adequate safeguards for pediatric subjects during such studies, given our present knowledge about radiation and its effects, can we conclude that the current dose limits for pediatric subjects do not pose a significant risk? If not, what dose limits would be appropriate to ensure no significant risk for pediatric subjects? Should there be different dose limits for different pediatric age groups?
4.
5.
6.
a. Under § 361.1(c)(1), an RDRC must include the following expertise: (1) A physician recognized as a specialist in nuclear medicine, (2) a person qualified to formulate radioactive drugs, and (3) a person with special competence in radiation safety and radiation dosimetry. Would an RDRC benefit from any additional expertise, such as a pharmacologist or toxicologist? Should such memberships be required?
b. Under § 361.1(c)(4), changes in the membership of an RDRC must be submitted to FDA as soon as, or before, vacancies occur on the committee. However, the regulations do not require approval of new members by FDA before a new member assumes committee responsibilities. We review the qualifications of new members when we receive them and contact the RDRC when we identify new members we consider to be unqualified, but we do not always receive notifications of changes in membership in a timely manner. At times, this has resulted in unqualified members serving on RDRCs for extended periods. Should the regulations specifically require that FDA approve RDRC membership changes before new members assume committee responsibilities? For example, would it be appropriate for the regulations to allow FDA 15 days to review the qualifications of a proposed new member before the member could assume committee responsibilities?
No registration is required to attend the meeting. Seating is limited to 120 and will be on a first-come, first-served basis. If you need special accommodations due to a disability, please inform Maria R. Walsh by November 2, 2004.
If you wish to present information at the public meeting, submit your electronic request and an abstract of your presentation by the close of business on October 19, 2004, to Maria Walsh (see
The request to participate should contain the following information:
(1) Presenter's name; (2) address; (3) telephone number; (4) e-mail address; (5) affiliation, if any; (6) abstract of the presentation; and (7) approximate amount of time requested for the presentation.
We request that persons and groups having similar interests consolidate their comments and present them through a single representative. We will allocate the time available for the meeting among the persons who request to present. Because of limited time, we will accept only one presenter per organization. We reserve the right to deny requests if the proposed topic is not germane. After reviewing the requests to present and abstracts, we will schedule each appearance and notify each participant by e-mail or telephone of the time allotted to the person and the approximate time the person's presentation is scheduled to begin. Presenters planning to use electronic presentations in Microsoft PowerPoint, Microsoft Word, or Adobe Acrobat PDF must send them to us by the close of business on November 2, 2004. Presenters who do not meet this deadline may provide handouts of their presentations at the meeting.
The meeting schedule will be available on the Internet at
Interested persons may submit written or electronic comments on or before January 16, 2005, to the Division of Dockets Management (see
Approximately 30 days after the public meeting, you can examine a transcript of the meeting on the Internet at
The following references have been placed on display in the Division of Dockets Management and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.
1. Preston, D.L., Y. Shimizu, D.A. Pierce, A. Suyama, and K. Mabuchi, “Studies of mortality of atomic bomb survivors, Report 13: Solid cancer and noncancer disease mortality: 1950-1997,” Vol. 160, No. 4, pp. 381-407, Radiation Research, 2003.
2. International Commission on Radiological Protection, “1990 Recommendations of the International Commission on Radiological Protection,” Annals of the International Commission on Radiological Protection (ICRP), ICRP Publication 60, vol. 21, No. 1-3, pp. 1-201, 1991.
3. National Council on Radiation Protection Measurements (NCRP), “Limitation of Exposure to Ionizing Radiation,” NCRP Report no. 116, Bethesda, MD, 1993.
4. National Council on Radiation Protection and Measurements, “Principles and Application of Collective Dose in Radiation Protection,” NCRP Report No. 121, Bethesda, MD, 1995.
Internal Revenue Service (IRS), Treasury.
Notice of public hearing on proposed rulemaking.
This document contains a notice of public hearing on proposed regulations relating to the tax on the entry of taxable fuel into the United States.
The public hearing is being held on January 12, 2005, at 10 a.m. The IRS must receive outlines of the topics to be discussed at the hearing by December 1, 2004.
The public hearing is being held in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC.
Mail outlines to: CC:PA:LPD:PR (REG-120616-03) , room 5203, Internal Revenue Service POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-120616-03), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC or sent electronically, via the IRS Internet site at
Concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing LaNita Van Dyke, (202) 622-7180 (not a toll-free number).
The subject of the public hearing is the notice of proposed regulations (REG-120616-03) that was published in the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who have submitted written comments and wish to present oral comments at the hearing must submit an outline of the topics to be discussed and the amount of time to be devoted to each topic (signed original and eight copies) by December 1, 2004.
A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of agenda will be made available, free of charge, at the hearing. Because of access restrictions, the IRS will not admit visitors beyond the immediate entrance area more than 30 minutes before the hearing. For information about having your name placed on the building access list to attend the hearing, see the
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the Wisconsin regulations as they pertain to Northern Engraving Corporation (NEC) facilities in Galesville and West Salem, Wisconsin as requested by the State of Wisconsin on June 27, 2003. This State Implementation Plan (SIP) revision makes changes to Wisconsin air pollution control rules federally enforceable. The rule revisions modify the emission limits adopted by the state that are part of the current Wisconsin SIP. The revised rules, specifically portions of the Environmental Cooperative Agreement with NEC, supercede portions of the rules in the Wisconsin SIP.
In the “Rules and Regulations” section of this
Comments on this action must be received by November 4, 2004.
Written comments should be mailed to: Pamela Blakley, Chief, Air Permits Section, Air Programs Branch (AR-18J), United States Environmental Protection Agency Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Comments may also be submitted electronically or through hand delivery/courier. Commenters are advised to review the information and follow the instructions for submitting comments as described in Part (I)(B) of the Supplementary Information section of the companion direct final rule published in the rules section of this
A copy of the state's request is available for inspection at the above address.
Constantine Blathras at (312) 886-0671,
I. What action is EPA taking today?
II. Where can I find more information about this proposal and corresponding direct final rule?
The EPA is proposing to approve a revision to the Wisconsin regulations as they pertain to NEC's Galesville and West Salem, Wisconsin facilities as requested by the State of Wisconsin on June 27, 2003. The SIP revision makes changes to Wisconsin air pollution control rules federally enforceable. These rule changes were made at the request of NEC and the State of Wisconsin and they apply to the operation of the NEC Galesville and West Salem facilities. The rule revisions modify the emission limits adopted by the State of Wisconsin, which are part of the current Wisconsin SIP. The rule revisions and portions of the Environmental Cooperative Agreement supercede portions of rules in the Wisconsin SIP requiring a source-specific SIP revision.
For additional information see the direct final rule published in the Rules and Regulations section of this
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Volatile organic compounds.
42 U.S.C. 7401
Food Safety and Inspection Service, USDA.
Notice of public meeting.
The Food Safety and Inspection Service will hold a public meeting on October 13-15, 2004, in Miami, Florida, to review and discuss the establishment of the Food Safety Institute of the Americas (FSIA). The creation of the FSIA is an innovative idea for integrating scientific food safety education, information, communication, and outreach in the Americas. During the public meeting, the following issues relating to the FSIA will be discussed: (1) Identifying and assessing educational and informational needs; (2) fostering collaboration and partnership development; (3) establishing strategies and best practices for developing and delivering programs; and (4) planning next steps for the FSIA.
The public meeting will be an interactive session. Discussions will be conducted in plenary sessions as well as in small group workshops for each of the above four issues.
The public meeting will begin on Wednesday, October 13, 2004, from 12 p.m. to 5 p.m. and on Thursday, October 14, from 8:30 a.m. to 5:30 p.m. and Friday, October 15, from 8:30 a.m. to 2 p.m.
All FSIA meetings will take place at the Radisson Hotel Miami, 1601 Biscayne Boulevard, Miami, Florida, 33132.
In addition, a block of rooms has been held for participants at the Marriott Biscayne Bay Hotel, 1633 North Bayshore Drive, Miami, Florida 33132. (Phone: 305-374-3900). Participants for the FSIA meeting will receive a special rate of $119.00 per night. Reservations must be confirmed with the necessary credit card or payment information no later than October 8, 2004. Please reference the USDA-FSIA meeting when making reservations.
A meeting agenda is available on the Internet at
• Mail, including floppy disks or CD-ROM's, and hand- or courier-delivered items: Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, 300 12th Street, SW., Room 102, Cotton Annex, Washington, DC 20250-3700.
All submissions received must include the Agency name and docket number 04-035N.
All comments submitted on the topics to be discussed at the public meeting will be available for public inspection in the FSIS Docket Room at the address listed above between 8:30 a.m. and 4:30 p.m., Monday through Friday. The comments also will be posted on the Agency's Web site at
Linda Swacina, The Food Safety Institute of the Americas office at 305-347-5552,
All meeting participants will be required to pre-register before entering the meeting. A pre-registration form is located at:
Persons requiring a sign language interpreter or other special accommodations should notify the FSIA office no later than October 7, 2004, at the above number or by e-mail.
The explosive growth of the international food market has brought a variety of food never before available to the ordinary consumer's table throughout the Americas. People can consume new products from different regions and enjoy traditional seasonal favorites throughout the year. Countries are now more dependent on each other's safeguards to guarantee their citizens a wholesome food supply and to protect the public health of their country and the region.
The nations of the Americas make up a community committed to meeting the many challenges of ensuring food safety and security. One approach to these complex problems is for our countries to develop and effectively exchange scientific information and education on food safety and security risks and on how to manage them.
The FSIA is an innovative approach for harmonizing, developing, and distributing food safety and security information and education throughout the Americas; coordinating programs so that we concentrate on areas where our needs are the greatest; sharing resources on programs that already exist within our community; promoting the development of international food safety standards; and protecting ourselves as a region from food security threats.
To do this, the FSIA will develop and enlist the support of existing networks among researchers, public health officials, regulatory officials, and food and animal producers and distributors. There are many academic, governmental and nongovernmental organizations with wide-ranging expertise that would make them potential partners in FSIA's development and implementation.
In one scenario, the FSIA would be divided into the following nine colleges and include development and implementation of training, education, and information materials in these areas: (1) Codex Alimentarius; (2) Regulatory Foundation Studies; (3) Public Health Studies; (4) Food Security; (5) Manufactured Foods; (6) Animal and Food Production Studies; (7) Retail Programs; (8) Laboratory Studies; and (9) Consumer Education and Information Programs.
The major goal of the FSIA is to improve and harmonize food safety education, information, and communication throughout the Americas in order to improve public health within each and among the countries of the region. It will provide major outreach activities to identify, develop, and coordinate educational programs and to promote the development of international food safety standards and common food security protection.
FSIA will provide the region with greater access to food safety information and the technical assistance necessary to ensure the safety of meat, poultry, and egg products. In addition, FSIA will promote the activities of the Codex Alimentarius Commission to bring about standardization of food safety requirements and become a forum for scientific discussion relevant to food safety and international standards in the Americas. In this way, it will encourage and support development of science-based agreements that strengthen national and local economies.
The FSIA will help establish working relationships among collaborating countries through regular interaction of academic researchers and educators, government regulators, and food safety professionals. Enhancing and fostering these contacts are critically important in addressing regional food safety concerns and improving understanding about requirements for imported and exported products.
All interested parties are welcome to attend the meetings and to submit written comments and suggestions addressing issues concerning the FSIA that will be reviewed and discussed. The comments and the official transcript of the meeting, when they become available, will be kept in the FSIS Docket Room at the address provided above. All comments received in response to this notice will be considered part of the public record and will be available for viewing in the FSIS Docket Room between 8:30 a.m. and 4:30 p.m., Monday through Friday, except for Federal holidays.
Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to better ensure that the public and in particular that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it on-line through the FSIS Web site located at
FSIS also will make copies of this
Food Safety and Inspection Service, USDA.
Notice of public meeting and availability of draft risk assessments.
The Food Safety and Inspection Service (FSIS) is announcing that it will hold a public meeting to discuss two draft quantitative risk assessments on
At the public meeting, FSIS will discuss the technical design and assumptions used to create these draft risk assessments. The draft risk assessments will be available in the FSIS docket room (address below) and will be posted to the FSIS Web site at
The public meeting is scheduled for Friday, October 22, 2004. The meeting will be held from 9 a.m. to 12:30 p.m. Submit written comments on the draft risk assessments on or before November 15, 2004.
The public meeting will be held at the Hyatt Regency Washington on Capitol Hill, 400 New Jersey Avenue, NW., Washington, DC, 20001.
A tentative agenda is available in the FSIS docket room (address below) and on the FSIS Web site at
• Mail, including floppy disks or CD-ROM's, and hand- or courier-delivered items: Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, 300 12th Street, SW., Room 102, Cotton Annex, Washington, DC 20250.
All submissions received must include the Agency name and docket number 04-034N.
All comments received and the official transcript of the meeting will be available for viewing in the FSIS Docket Room at the address listed above between 8:30 a.m. and 4:30 p.m., Monday through Friday. The comments also will be posted on the Agency's Web site at
Philip Derfler, Assistant Administrator, Office of Policy, Program, and Employee Development, FSIS, U.S. Department of Agriculture, 1400 Independence Avenue, SW., Washington, DC 20250-3700, (202) 720-2709. For technical information, contact Carl Schroeder, Ph.D., at (202) 690-6346 or e-mail
FSIS administers the Egg Products Inspection Act (21 U.S.C. 1031-1056). The Agency's current activities are intended to prevent the distribution in domestic and foreign commerce, as human food, of unwholesome, adulterated, or misbranded pasteurized egg products.
For the past several years, FSIS and the Food and Drug Administration (FDA) have been developing a joint and coordinated strategy to more effectively deal with egg safety. Pursuant to this coordinated strategy, FDA recently published a proposed rule that would require shell egg producers to implement measures to prevent SE from contaminating eggs on the farm (69 FR 56823, Sept. 22, 2004). FSIS, in turn, is focusing its pathogen reduction efforts on egg products plants and egg handling operations that pasteurize shell eggs.
To better evaluate potential mitigations for reducing the public health impact of SE and
Since 1998, new data have become available that has allowed FSIS to develop risk assessments that are more useful for developing FSIS performance standards for SE in pasteurized shell eggs and
FSIS requests comment on these draft risk assessments and will hold a public meeting to discuss and seek input on them on October 22, 2004, at (
Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that the public and in particular minorities, women, and persons with disabilities, are aware of this notice, FSIS will announce it on-line through the FSIS Web page located at
FSIS also will make copies of this
Forest Service, USDA.
Notice of meeting.
The Oregon Coast Province Advisory Committee will meet in Corvallis, OR, October 14, 2004. The theme of the meeting is Introduction/Overview/Business Planning. The agenda includes: PAC Subcommittee Updates, RiverPrize Update, Special Forest Products, 2005 Meeting Theme/Agenda/Dates, Public Comment and Round Robin.
The meeting will be held October 14, 2004, beginning at 9 a.m.
The meeting will be held at the Siuslaw National Forest Headquarters, 4077 SW. Research Way, Corvallis, Oregon, 97333.
Joni Quarnstrom, Public Affairs Specialist, Siuslaw National Forest, 541-750-7075, or write to Siuslaw National Forest Supervisor, P.O. Box 1148, Corvallis, OR 97339.
The meeting is open to the public. Council Discussion is limited to Forest Service/BLM staff and Council Members. Lunch will be on your own. A public input session will be at 2 p.m. for fifteen minutes. The meeting is expected to adjourn around 3 p.m.
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: (1) Introductions, (2) approval of minutes, (3) public comment, (4) chairman report, (5) new members welcome, (6) review of projects funded to date, (7) general discussion, (8) next agenda.
The meeting will be held on October 14, 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; Email
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
Forest Service, USDA.
Notice of interim contracts, request for comments.
The Forest Service is implementing Integrated Resource Contracts, FS-2400-13, for use when timber products are measured after harvest, and FS-2400-13T, for use when timber products are measured before harvest. The contracts are for use in stewardship end result contracting pursuant to section 323 of Public Law 108-7, the Consolidated Appropriations Resolution (16 U.S.C. 2104 note), when the value of timber exceeds the cost of service work. Except for additions addressing new stewardship contracting authorities, both contracts parallel the recently revised Timber Sale Contracts FS-2400-6 and FS-2400-6T which became effective upon notice in the
Comments must be received in writing on or before November 4, 2004.
Send written comments by mail to USDA Forest Service, Director Forest Management, 1400 Independence Avenue, SW., Mail Stop 1103, Washington, DC 20250-0003; via e-mail to:
Richard Fitzgerald, Forest Management Staff, (202) 205-1753, or Lathrop Smith, Forest Management Staff, (202) 205-0858.
Section 323 of Public Law 108-7, the Consolidated Appropriations Resolution (16 U.S.C. 2104 note), established new authorities for stewardship contracting not addressed in existing Forest Service timber sale contract forms. In general, the new authorities allow the Forest Service to enter into stewardship contracts with public or private entities or persons to perform services to achieve land management goals for National Forest System lands that meet local and rural community needs. By combining components of both service and timber sale contracts into a single integrated resource contract the value of timber or other forest products removed can be used as an offset against the cost of services received. Integrated Resource Contracts FS-2400-13 and FS-2400-13T are for use with stewardship end result contracting when the value of timber exceeds the cost of service work. Except where they deviate to address the new authorities and the limitation of compensation in the event of a sovereign act that would affect a stewardship contract, the FS-2400-13 and FS-2400-13T contracts parallel the recently revised Timber Sale Contracts FS-2400-6 and FS-2400-6T which became effective upon notice in the
Integrated Resource Contracts FS-2400-13 and FS-2400-13T were patterned after the FS-2400-6 and FS-2400-6T contracts respectively. However, in order to address new authorities in section 323 of Public Law 108-7, the Consolidated Appropriations Resolution (16 U.S.C. 2104 note), the following conditions and provisions were added to the Integrated Resource Contracts:
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In addition to the changes listed above, the Integrated Resources Contract provisions differ from the timber sale contracts in the following areas:
1. Integrated resource contract provision I/IT2.3-Contract Term Extension, combines timber sale contract provisions B/BT8.23-Contract Term Extension, and B/BT8.231, Conditions for Contract Term Extension.
2. Integrated resource contract provisions J/JT.4-Damages for Failure to Complete Contract or Termination for Breach, expands timber sale contract provision B/BT6.31 to address stewardship projects.
3. The timber sale contracts under provision B/BT6.9 required the purchaser to provide access to records to enable the Forest Service to develop and evaluate appraisal data. The Integrated Resource Contracts do not contain a comparable requirement because the services components of these contracts would skew operating costs rendering the data unreliable for comparative purposes.
Comments will be considered when the Forest Service prepares the final Integrated Resource Contracts, FS-2400-13 and FS-2400-13T. When the Integrated Resource Contracts are finalized, a subsequent notice will be published in the
Natural Resources Conservation Service.
Notice of finding of no significant impact.
Pursuant to section 102(2)(c)of the National Environmental Policy Act of 1969; the Council on Environmental Quality Regulations (40 CFR part 1500); and the Natural Resources Conservation Service Regulations (7 CFR part 650); the Natural Resources Conservation Service, U.S. Department of Agriculture, gives notice than an environmental impact statement is not being prepared for the Supplemental Watershed Plan No. 1 for East Fork of the Grand River Watershed Plan and Environmental Impact Statement (Approved 1996), Ringgold and Union Counties, Iowa, and Harrison and Worth Counties, Missouri.
Richard Van Klaveren, State Conservationist, Natural Resources Conservation Service, 210 Walnut Street, 693 Federal Building, Des Moines, IA 50309-2180.
The environmental assessment of this federally assisted action indicates that the project will not cause significant impacts on the environment. As a result of these findings, Richard Van Klaveren, State Conservationist, has determined that the preparation and review of an environmental impact statement are not needed for this project.
This document sets forth a supplement to the East Fork of the Grand Watershed Plan-EIS that slightly relocates and enlarges multipurpose structure GB-3 from a permanent pool of 350 acres to 565 acres. The 565 acre site will be renamed Gooseberry Lake. The increase in size is to meet additional other agricultural water management and recreation needs.
Gooseberry Lake and its 6210 acre watershed are northeast of Mount Ayr and are located entirely in Ringgold County, Iowa.
The Notice of a Finding of No Significant Impact (FONSI) has been forwarded to the Environmental Protection Agency and to various Federal, State, and local agencies. A limited number of copies of the FONSI are available to fill single copy requests at the above address. The FONSI is also available at the Iowa NRCS Web site at
No administrative action will be taken until 30 days after the date of this publication in the
The Supplemental Watershed Plan No. 1 East Fork of the Grand River Watershed and Environmental Assessment (EA) describes the recommended alternative which is a modification of the GB-3 multipurpose site that was part of the East Fork of the Grand River Watershed Plan and Environmental Impact Statement (EIS). The Supplemental Watershed Plan No. 1-EA compares the effects that will arise from the installation of Gooseberry Lake to those that would have occurred from the installation of the original GB-3 structure.
This modification of the GB-3 site is necessary to meet the Sponsors' request to increase the water supply and recreation resources from those originally planned for GB-3 lake site in order to satisfy increased demands for these resources from the public.
The East Fork of the Grand River Watershed Plan and EIS was approved in 1996 under the authority of the Watershed Protection and Flood Prevention Act of 1954 (Public Law No. 566, 83rd Congress).
This supplemental plan-EA is being planned and will be implemented under the same authority. It is being planned and is in compliance with all National Environmental Policy Act (NEPA) and the National Historic Preservation Act of 1966 as amended (NHPA) provisions. The policies and procedures of the Watershed Protection and Flood Prevention Act, Public Law 83-566 as amended (16 U.S.C. 1001
An environmental evaluation was undertaken by the Natural Resources Conservation Service (NRCS) in conjunction with the development of this supplemental plan-EA. This evaluation was undertaken in consultation with local, State and Federal agencies as well as interested organizations and individuals. Copies of the supplemental plan-EA are available for public review from the following location: Natural Resources Conservation Service, 210 Walnut Street, 693 Federal Building, Des Moines, IA 50309-2180.
Site GB-3 will be moved downstream and increased in size. This relocated structure site is renamed Gooseberry Lake. The Gooseberry Lake Association will acquire the 2,365 acres needed for Gooseberry Lake and surrounding area for public use as a fish and wildlife area. The Gooseberry Lake will have a permanent pool of 565 acres, 1,393 acres managed as wildlife habitat, and 182 acre county park. The dam and floodwater storage pool comprise the balance of the 2,365 project acres.
There are no cultural resources in the area of potential effect. Construction of recreation facilities (
Construction of the dam and multipurpose pool inundates 24,000 feet (8 acres) of low quality ephemeral and intermittent warm water stream channel habitat. This conversion creates 565 acres of high quality warm water lacustrine habitat.
No jurisdictional wetlands were identified in either the planned multipurpose pool, flood pool, or at the structure site.
Ringgold County is within the summer range of the Indiana Bat (
While 110.1 acres woody wildlife habitat with a value of 73.6 Habitat Units will be lost to the structure and pool, the installation of planned measures will produce 248 additional acres of woody wildlife habitat worth 110.8 Habitat Units. This will produce a net project gain of 147.9 acres and 37.8 habitat units.
Grassland wildlife habitat on 425 acres with a value of 117.7 Habitat Units will be lost due to the project. The installation of planned measures will produce 650 acres additional acres of grassland wildlife habitat worth 299 Habitat Units. This will produce a net project gain of 225 acres and 181.3 habitat units.
Installation of the project will convert 2,365 acres of cropland, hayland, and pasture to non-agricultural land uses. This includes 725 acres of prime farmland.
The only alternative action to the proposed action considered in the supplemental plan-EA would be to construct Site GB-3 approved in the original watershed plan-EIS. That alternative action was rejected by the Sponsors. The supplemental plan is the only alternative that meets the local Sponsors objectives and is acceptable to local residents. The plan is the National Economic Development (NED) plan.
The Gooseberry Lake Agency has held more than 40 meetings beginning in 2000. All have been conducted in accordance with the Iowa Open Meetings Law. This means that the public has been notified of each meeting and allowed to attend and participate in each meeting. Typically, 10-25 members of the public attend these regular meetings; two to five request time on the agenda to speak. One or more members of the NRCS staff were at each of those meetings in order to answer questions and receive comments.
Ongoing public participation identified the need to include detailed information on recreation benefits and other direct costs related to lost farm income. This was done and was discussed in the supplemental plan-EA.
NRCS hosted a week long open house at Mount Ayr, Iowa in February 2004. Numerous displays and information related to the East Fork of the Grand Watershed and the proposed 565 acre Gooseberry Lake were available during the open house. NRCS staff answered questions from the over 80 public participants.
Seven Indian tribal contacts and one local historical society were notified of this intended action in accordance with 36CFR800. They were consulted about their knowledge of historical properties in the project area. No response was received from the tribes or the local historical society.
The draft supplemental plan was provided to local, state, and federal agencies and non-governmental organizations for a 45 day long interagency review beginning in March, 2004. Any private citizens who requested the document were also mailed copies and requested to comment during the interagency review comment period. Seventy-eight copies of the supplemental plan-EA were distributed to the above agencies and private citizens during the interagency comment period. The NRCS also posted the draft supplemental plan on its Iowa Web site, at
Significant comments were received from five private citizens, four government agencies, and one non-governmental organization. These comments were addressed in the final supplemental plan-EA.
The Environmental Assessment summarized above indicates that this Federal action will not cause significant impacts on the environment. Therefore, based on the above findings, I have determined that an environmental impact statement for the Supplemental Watershed Plan No. 1 East Fork of the Grand River Watershed is not required.
Antitrust Modernization Commission.
Notice of public meeting.
The Antitrust Modernization Commission will hold a public meeting on October 20, 2004. The purpose of the meeting will be to (1) discuss the criteria and processes upon which the Commission will employ in selecting issues for further study and (2) discuss the nature of the report the Commission will issue.
October 20, 2004, 10 a.m. until 1 p.m., unless earlier adjourned. All interested members of the public may attend. Registration is not required.
Federal Trade Commission, Conference Center Rooms A & B, 601 New Jersey Avenue, NW., Washington, DC.
Andrew J. Heimert, Executive Director & General Counsel, Antitrust Modernization Commission: telephone: (202) 326-2487; e-mail:
The Antitrust Modernization Commission
The AMC has called this meeting pursuant to its authorizing statute and the Federal Advisory Committee Act. Antitrust Modernization Commission Act of 2002, Pub. L. 107-273, § 11058(f), 116 Stat. 1758, 1857; Federal Advisory Committee Act, 5 U.S.C. App. 10(a)(2); 41 CFR 102-3.150 (2003).
By direction of Deborah A. Garza, Chair of the Antitrust Modernization Commission.
Approved by Designated Federal Officer:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public hearing.
The Pacific Islands Regional Office of NMFS, in coordination with the Western Pacific Fishery Management Council, will hold a public hearing in Honolulu, HI, to receive comments on a draft environmental impact statement (DEIS) for management measures being considered for the domestic pelagic fisheries in the Pacific Ocean. The DEIS describes and assesses the likely environmental impacts of a range of alternatives for two fishery management actions. The first action is aimed at cost-effectively reducing the potentially harmful effects of fishing by Hawaii-based longline vessels on seabirds. The second is aimed at establishing an effective management framework for pelagic squid fisheries in the Pacific, including fishing activities within the exclusive economic zone of the U.S. and on the high seas. The first action would be taken through the Fishery Management Plan for the Pelagic Fisheries of the Western Pacific Region (FMP), under the authority of the Magnuson-Stevens Fishery Conservation and Management Act. The second action would be taken both through the FMP and under the authority of the High Seas Fishing Compliance Act.
Public hearings will be held as follows: Wednesday, October 6, 2004, from 5 to 7 p.m., on Hawaii Island in Hilo, HI; Thursday, October 7, 2004, from 6 to 8 p.m., on Oahu Island in Honolulu, HI; and Friday, October 8, 2004, on Kauai Island in Lihue, HI. All times are Hawaii Standard Time.
The public hearings will be held at the following locations: On Hawaii Island at the University of Hawaii at Hilo, Campus Center, Room 301, 200 W. Kawili St., Hilo, HI; On Oahu Island at the office of the Western Pacific Fishery Management Council, 1164 Bishop Street, Suite 1400, Honolulu, HI; On Kauai Island, at Kamakahelei Middle School, Room E-101, 4431 Nuhou St., Lihue, HI.
Tom Graham, NMFS, 808-973-2937.
The DEIS was made available to the public on August 27, 2004, as described in a Notice of Availability published in the
To obtain a copy of the DEIS or for additional information, contact NMFS (see
This hearing is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Tom Graham, 808-973-2937 (voice) or 808-973-2941 (fax), by October 6, 2004.
16 U.S.C. 1801
United States Patent and Trademark Office (USPTO).
The United States Patent and Trademark Office (USPTO) has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by any of the following methods:
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Written comments and recommendations for the proposed information collection should be sent on or before November 4, 2004 to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, 725 17th Street NW., Washington, DC 20503.
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (CFTC) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
Comments must be submitted on or before December 6, 2004.
Comments may be mailed to David Van Wagner, Division of Market Oversight, U.S. Commodity Futures Trading Commission, 1155 21st Street, NW., Washington, DC 20581.
David Van Wagner (202) 418-5481; FAX: (202) 418-5527; e-mail:
Under the PRA, 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, the CFTC invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology;
The Commission's Part 41 rules establish the regulatory framework governing the offer and sale of security futures. Section 5f of the Commodity Exchange Act mandates that the Commission set forth procedures that permits certain entities—specifically, national securities exchanges, national securities associations, and alternative trading systems—that would otherwise be regulated by the SEC, to become designated contract markets for the limited purpose of trading security futures products.
The Commission estimates the burden of this collection of information as follows:
There are no capital costs or operating and maintenance costs associated with this collection.
This estimate is based on the number of requests for such designations submitted in the last three years. Although the burden varies with the type, size, and complexity of the request submitted, such request might involve analytical work and analysis, as well as the work of drafting the request itself.
Department of the Air Force, DoD.
Notice of meeting.
Pursuant to Pub. L. 92-463, notice is hereby given of the forthcoming meeting of the 2004 Science and Technology Quality Review Panel. The purpose of the meeting is to allow the Air Force Scientific Advisory Board to assess the quality and long-term relevance of Air Force Research Laboratory Directed Energy research. Because classified and contractor-proprietary information will be discussed, this meeting will be closed to the public.
25-29 October 2004.
Kirtland Air Force Base, NM.
Major Kyle Gresham, Air Force Scientific Advisory Board Secretariat, 1180 Air Force Pentagon, Rm 5D982, Washington DC 20330-1180, (703) 697-4808.
Department of Education.
The Leader, Regulatory Information Management Services, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before December 6, 2004.
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 Services, 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,
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Individuals or household.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Katrina Ingalls at her e-mail address
Department of Education.
The Leader, Regulatory Information Management Services, 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 November 4, 2004.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Carolyn Lovett, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or faxed to (202) 395-6974.
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 Services, 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, e.g. new, revision, extension, existing or reinstatement; (2) title; (3) summary of the collection; (4) description of the need for, and proposed use of, the information; (5) respondents and frequency of collection; and (6) reporting and/or recordkeeping burden. OMB invites public comment.
Businesses or other for-profit; Individuals or household, Not-for-profit institutions, Federal Government, State, Local, or Tribal Gov't, SEAs or LEAs.
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 Services, 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 November 4, 2004.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Carolyn Lovett, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or faxed to (202) 395-6974.
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 Services, 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
Election Assistance Commission (EAC).
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, EAC announces the proposed extension of a public information collection and seeks public comment on the provisions thereof. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received on or before Wednesday, October 14, 2004.
Written comments and recommendations on the proposed information collection should be sent to the Election Assistance Commission, 1225 New York Avenue, NW., Washington, DC 20005, ATTN: Mr. Brian Hancock or may be submitted by facsimile transmission at (202) 566-3127.
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the above address, or call Mr. Brian Hancock or Ms. Juliet Thompson at (202) 566-3100.
HAVA created the Election Assistance commission and enacted numerous provisions aimed at improving the administration of federal elections. This survey seeks information relating to the November 2, 2004 election that will assist the EAC in studying the administration of that federal election, will provide insight into issues or problems that may require additional study and consideration, and will assist the EAC in providing a complete report to Congress on the successes and challenges related to the November 2, 2004 election. The following categories of information are requested on a county/local election jurisdiction and/or state-wide level:
Number of registered voters (active and inactive) who were eligible to vote on November 2, 2004.
(a) Number of ballots counted, (b) number of ballots cast on election day, (c) number of requested absentee ballots, (d) number of returned absentee ballots, (e) number of counted absentee ballots, (f) number of early voting ballots counted, (g) number of provisional ballots cast, (h) number of provisional ballots counted, (i) number of undervotes in each federal contest (i.e., presidential, senatorial, and congressional races/contests), (j) number of overvotes in each federal contest, and (k) total number of ballots casts in each federal contest.
(a) Type, manufacture and number of units of voting equipment used in each county, and (b) the location and number of voting machine malfunctions, including power failure, broken counters, computer failure, printer failure, screen failure, damage or destruction of the voting machine, modem failure, scanner failure, ballot encoder/activator failure, or other forms of malfunctions.
(a) Number of precincts in each county/local election jurisdiction, and (b) number of polling places in each county/local election jurisdiction.
(a) Number of local election jurisdictions that responded and provided information for the survey, (b) name and contact information for persons who provided information for the survey, and (c) any other sources of information used to report in the survey.
Office of General Counsel, Department of Energy.
Notice of computer software available for license.
The U.S. Department of Energy announces that the following computer software is available for license: “MASTER” (Mathematical Software for Teaching, Education, and Research).
John T. Lucas, Office of the Assistant General Counsel for Technology Transfer and Intellectual Property, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585; Telephone (202) 586-2802.
The above-captioned computer software was developed under the International Science and Technology Center (ISTC) project # 1478.2. The software is used to solve physical problems by means of computer simulation. It is capable of simulating the following non-stationary processes in one-dimensional approximation: gas, fluid, and solid matter movement under gradients of
The software currently may be in need of revision, and the Department is looking for one or more private-sector parties who will revise and maintain the software at their own expense. The private sector party or parties will have the right to market the software to non-Government parties. The Government will retain an unlimited, royalty free, non-exclusive license in the original version of the software for Governmental purposes.
Parties will be given 45 calendar days from the date of this Notice to contact the Department. After the period for response has elapsed, respondents will be sent a series of questions on their plans for revising, maintaining, and commercializing the software and under what terms they would make it available to the Government. DOE will then decide which party or parties to select.
Office of General Counsel, Department of Energy.
Notice of computer software available for license.
The U.S. Department of Energy announces that the following computer software is available for license: “Thermal Safety Software” or TSS.
John T. Lucas, Office of the Assistant General Counsel for Technology Transfer and Intellectual Property, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585; Telephone (202) 586-2802.
The above-captioned computer software was developed under the International Science and Technology Center (ISTC) project #1498. The system, called “Thermal Safety Software” or TSS, is designed to address the complex problems associated with performing reactive hazard assessment (RHA) of chemical processes. This is achieved by extensive use of mathematical models and computational methods implemented in the software set. TSS application can significantly improve reliability of results, speed up the design, research, and development work and reduce its cost. TSS has the following general features: (1) Sequential simulation as the approach to reactive hazard assessment; (2) combination of powerful numerical methods and researcher's skills; (3) up-to-date numerical methods and web-based technologies; (4) integration of the software suite in one system; (5) a unified user-friendly interface; (6) advanced graphics; and (7) an advanced training system.
The software currently may be in need of revision, and the Department is looking for one or more private-sector parties who will revise and maintain the software at their own expense. The private sector party or parties will have the right to market the software to non-Government parties. The Government will retain an unlimited, royalty free, non-exclusive license in the original version of the software for Governmental purposes.
Parties will be given 45 calendar days from the date of this Notice to contact the Department. After the period for response has elapsed, respondents will be sent a series of questions on their plans for revising, maintaining and commercializing the software, and under what terms they would make it available to the Government. DOE will then decide which party or parties to select.
Take notice that on September 17, 2004, Entrega Gas Pipeline, Inc. (Entrega); 950 17th Street, Suite 2600, Denver, Colorado, 80202, filed an application pursuant to section 7(c) of the Natural Gas Act (NGA) and parts 157 and 284 of the Commission's regulations, for: (i) A certificate of public convenience and necessity authorizing the construction, ownership, and operation of new interstate natural gas pipeline facilities; (ii) a blanket certificate of public convenience and necessity authorizing Entrega to provide open-access transportation services, with pre-granted abandonment approval; and (iii) a blanket certificate of public convenience and necessity to construct, operate, and/or abandon certain eligible facilities, and services related thereto. Entrega is also requesting authorization for its proposed recourse rates for transportation service and approval of its Pro Forma Tariff. This application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Specifically, Entrega proposes to construct and operate 327 miles of 36-inch diameter and 42-inch diameter pipeline from the Meeker Hub in Rio Blanco County, Colorado and extending through Moffat County, Colorado and Sweetwater, Carbon, Albany, and Laramie Counties in Wyoming, and terminating at the Cheyenne Hub in Weld County, Colorado. Entrega also proposes to construct compressor stations at three locations in Moffat County, Colorado (24,000 horsepower), Sweetwater County, Wyoming (15,500 horsepower), and Carbon County, Wyoming (15,500 horsepower). In addition, Entrega proposes to construct 7 receipt/delivery points along the pipeline. Entrega estimates that the proposed facilities will cost $644,025,000. Entrega states that the
Any questions about this application should be directed to Larry Drader, President, Entrega Gas Pipeline, Inc., 950 17th Suite 2600, Denver, Colorado, at (303) 389-5069 or fax (720) 956-3610; or to Keith M. Sappenfield, II, Regulatory Lead, Entrega Gas Pipeline, Inc., 1616 South Voss Road, Suite 750, Houston, Texas 77057, at (832) 204-1247 or fax (713) 952-3617.
On March 19, 2004 the Commission staff granted Entrega's request to utilize the National Environmental Policy Act (NEPA) Pre-Filing Process and assigned Docket No. PF04-7-000 to staff activities involving Entrega. Now, as of the filing of Entrega's application on September 17, 2004, the NEPA Pre-Filing Process for Entrega's project is closed. From this time forward, Entrega's proceeding will be conducted in Docket Nos. CP04-413-000,
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date listed below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of this filing and all subsequent filings made with the Commission and must mail a copy of all filing to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, other persons do not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to this project provide copies of their protests only to the party or parties directly involved in the protest.
Persons may also wish to comment further only on the environmental review of this project. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of environmental documents issued by the Commission, and will be notified of meetings associated with the Commission's environmental review process. Those persons, organizations, and agencies who submitted comments during the NEPA Pre-Filing Process in Docket No. PF04-7-000 are already on the Commission staff's environmental mailing list for the proceeding in the above dockets and may file additional comments on or before the below listed comment date. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, environmental commenters are also not parties to the proceeding and will not receive copies of all documents filed by other parties or non-environmental documents issued by the Commission. Further, they will not have the right to seek court review of any final order by Commission in this proceeding.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the Internet in lieu of paper.
Take notice that on September 24, 2004, Trunkline Gas Company, LLC, P.O. Box 4967, Houston, Texas 77210-4967, filed in Docket No. CP04-420-000 an application pursuant to section 7(b) and 7(c) of the Natural Gas Act (NGA) and the Commission's Regulations, for authorization to abandon a 6350 horsepower (hp) compressor installed in 1954 and replace it with a new 1675 hp compressor at its existing Edna Compressor Station located in Jackson County, Texas, all as more fully set forth in the application which is on file with the Commission and open to public inspection. This filing may be also viewed on the Web at
Any questions regarding this application should be directed to William W. Grygar, Vice President, Rates and Regulatory Affairs at (713) 989-7000, Trunkline Gas Company, LLC, 5444 Westheimer Road, Houston, Texas 77056.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be
The Commission strongly encourages electronic filings of comments, protests and interventions via the Internet in lieu of paper.
Take notice that on September 27, 2004, Cabazon Wind Partners, LLC (Cabazon) filed a formal complaint against Southern California Edison Company (SCE) pursuant to section 206 of the Federal Power Act. Cabazon states that the complaint alleges that (1) the failure of the Interconnection Facilities Agreement (IFA) between Cabazon and Edison to provide Cabazon credit for its upfront payments for network upgrades, misclassified as distribution facilities, causes Southern California Edison's transmission rates to be unjust and unreasonable; and (2) the IFA is unjust and unreasonable separately because it requires Cabazon to pay a tax gross-up associated with the misclassified network upgrades.
Cabazon states that copies of the complaint were served on the contacts for (SCE) as listed on the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on September 21, 2004, LG&E Roanoke Valley L.P. (LRV) and Westmoreland-Roanoke Valley, L.P. (WVR, together with LRV, Applicants) on behalf of themselves and on behalf of Westmoreland-LG&E Partners (Partnership) submitted an application pursuant to section 203 of the Federal Power Act for authorization of disposition of jurisdictional facilities whereby an affiliate of WVR will purchase LVR's 50 percent general partnership interest in the Partnership. The Partnership filed a notice of change in status. Partnership states that it owns the remaining 50 percent general partnership interest in the Partnership. Partnership also states that it owns two pulverized coal-fired cogeneration facilities with a combined generating capacity of approximately 210 MW in Weldon Township, near Roanoke Valley, North Carolina.
Take notice that on September 22, 2004, Union Electric Company d/b/a AmerenUE (AmerenUE) filed with the Commission an application pursuant to section 203 of the Federal Power Act for authorization and approval of the sale of certain portions of its electric transmission facilities and related equipment to Citizens Electric Cooperative. AmerenUE states that it is a combination electric and gas public utility subject to the jurisdiction of the Commission. AmerenUE also states that it provides electric service within parts of the states of Missouri and Illinois and is subject to the jurisdictions of the utility regulatory commissions in both states. AmerenUE further states that it is a subsidiary of Ameren Corporation, a registered public utility holding company under the Public Utility Holding Company Act of 1935, as amended (PUHCA).
Take notice that on September 23, 2004, Entergy Corporation, (Entergy) on behalf of itself, Entergy Asset Management, Inc. (EAM), Entergy Power Generation Corporation, Entergy Power Gas Operations Corporation, Entergy
Entergy states that copies of this filing have been served on the Arkansas Public Service Commission, the Louisiana Public Service Commission, the City Council of New Orleans, the Mississippi Public Service Commission, and the Texas Public Utility Commission.
Take notice that on September 23, 2004, Entergy Services, Inc. (Entergy), on behalf of Entergy Arkansas, Inc., Entergy Gulf States, Inc., Entergy Louisiana, Inc., Entergy Mississippi, Inc., and Entergy New Orleans, Inc., filed a response to the Post Technical Conference Data Request issued on August 17, 2004 in the above-captioned proceedings.
Take notice that on September 22, 2004, Dynegy Power Marketing, Inc. (Dynegy) pursuant to section 205 of the Federal Power Act (FPA), 16 U.S.C. 824d, and part 35 of the Commission's regulations, 18 CFR part 35, submitted for filing amended rate schedules implementing provisions for sales of market-based ancillary services (Market-Based Ancillary Services Tariff). Dynegy states that this amended Rate Schedule was originally submitted September 10, 2004, in compliance with the Commission's order issued July 29, 2004, in
Take notice that on September 23, 2004, Florida Power & Light Company (FPL) submitted a Macedonia Temporary Tap Connection Agreement between Florida Power & Light Company and Georgia Transmission Corporation designated as FPL Rate Schedule No. 302. FPL states that the Macedonia Temporary Tap Connection Agreement provides Georgia Transmission Corporation with an alternative temporary connection capability, which will permit Georgia Transmission Corporation time to plan and construct additional facilities to enable it to directly serve two distribution substations, Macedonia and St. George, in the event that the current radial connection is out of service for any reason. FPL further states that the Agreement provides a temporary connection at the Macedonia substation on an as-needed and as-available basis until Georgia Transmission Corporation plans and constructs permanent facilities.
FPL states that copies of the filing were served upon the Georgia Transmission Corporation.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all parties to this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Comments, recommendations, terms and conditions, and prescriptions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
The Point “A” Development consists of the following existing facilities: (1) A 2,800-foot-long earthen dam comprised of a gated concrete spillway section; (2) a 700-acre reservoir at a normal water surface elevation of 170 feet msl; (3) a powerhouse, integral with the dam, containing three generating units with a total installed capacity of 5,200 kW, (4) a 0.39-mile-long, 46-kV transmission line; and (5) other appurtenances.
The Gantt Development consists of the following existing facilities: (1) A 1,562-foot-long earthen dam comprised of a gated concrete spillway section; (2) a 2,767-acre reservoir at a normal water surface elevation of 198 feet msl; (3) a powerhouse, integral with the dam, containing two generating units with a total installed capacity of 3,050 kW, and (4) other appurtenances.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at
All filings must (1) bear in all capital letters the title “COMMENTS”, “REPLY COMMENTS”, “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b), and 385.2010.
You may also register online at:
Final amendments to the application must be filed with the Commission no later than 45 days from the issuance date of this notice.
Take notice that an informal settlement conference will be convened in this proceeding commencing at 10 a.m. (e.s.t.) on Wednesday, October 6, 2004, at the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, for the purpose of exploring the possible settlement of the above-referenced docket.
Any party, as defined by 18 CFR 385.102(c), or any participant as defined by 18 CFR 385.102(b), is invited to attend. Persons wishing to become a party must move to intervene and receive intervenor status pursuant to the Commission's regulations (18 CFR 385.214).
For additional information, please contact Bob Keegan at (202) 502-8158,
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before December 6, 2004.
Submit your comments, referencing docket ID number OEI-2004-0004, to EPA online using EDOCKET (our preferred method), by e-mail:
Peter R. Westlin, Environmental Protection Agency, Office of Air Quality Planning and Standards (mail code D243-02), Research Triangle Park, North Carolina 27711; telephone number: (919) 541-1058; fax number: (919) 541-1039; e-mail address:
EPA has established a public docket for this ICR under Docket ID number OEI-2004-0004, which is available for public viewing at the Air and Radiation Docket and Information Center 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 Air and Radiation Docket and Information Center is (202) 566-1742. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
You should submit any comments related to this ICR to EPA within 60 days of this notice. EPA's policy is the Agency will make available public comments, whether submitted electronically or in paper, 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
In accordance with these provisions, the monitoring information source owners must submit must also be available to the public, except as entitled top protection from disclosure as allowed in section 114(c) of the Act. 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.
We are soliciting comments to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(ii) 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;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
The CAM program burden for source owners or operators means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide monitoring 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
During the period, permitting authorities will review CAM submittals from source owners or operators whose permits have already been issued and are renewing those permits as the 5-year permit terms expire. Permitting authorities will also be interacting with the source owners or operators in addressing the CAM in semi-annual monitoring reports and reporting CAM data as necessary. We estimate the annual CAM burden to permitting authorities to be 21,500 hours and about $1.5 million. 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.
Environmental Protection Agency.
Notice of proposed fourth administrative settlement and request for public comment.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C. 9622(i), notice is hereby given of a proposed fourth administrative settlement for recovery of past and projected future response costs concerning the Beede Waste Oil Superfund Site in Plaistow, New Hampshire with the settling parties listed in the Supplementary Information portion of this notice. The U.S. Environmental Protection Agency—Region I (“EPA”) is proposing to enter into a fourth de minimis settlement agreement to address claims under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C. 9601
Comments must be submitted on or before November 4, 2004.
The proposed fourth settlement is available for public inspection at the EPA Records Center, 1 Congress Street, Boston, MA 02114-2023 and at the Plaistow Public Library, 85 Main Street, Plaistow, NH (Telephone Number: 603-382-6011). Please call 617-918-1440 to schedule an appointment. A copy of the proposed fourth settlement may be obtained from Kristin Balzano, U.S. Environmental Protection Agency, Region I, 1 Congress Street, Suite 1100 (SES), Boston, MA 02114-2023 (Telephone Number: 617-918-1772). Comments should reference the Beede Waste Oil Superfund Site in Plaistow, New Hampshire and EPA Docket No. CERCLA-01-2004-0012 and should be addressed to Kristin Balzano, U.S. Environmental Protection Agency, Region I, 1 Congress Street, Suite 1100 (SES), Boston, MA 02114-2023.
Cindy Lewis, U.S. Environmental Protection Agency, Region I, 1 Congress Street, Suite 1100 (SES), Boston, MA 02114-2023 (Telephone Number: 617-918-1889).
This section contains a list of the approximately 276 settling parties. Each party name is listed as it appears on the current EPA list of potentially responsible parties (PRPs) and many of the names are followed by a parenthetical which refers to the name of the party listed on the AOC signature page. The following is a list of the settling parties, including settling federal agencies, to the proposed fourth settlement: 67 Smith Place Corporation, A & C Tire Company, Inc., A & O Service Center, Inc., A. Neal Perley d/b/a Perley's Marina, Acton Tire Inc., Advisory Realty Corporation, Agri-Mark, Inc., Alcatel (Alcatel Vacuum Products), Alvin Hollis and Company, Inc., American Eagle Tours, Inc., American Medical Response of Massachusetts, Inc., Amesbury Coach Inc., Amesbury Group Inc., AMI Leasing (Trucklease Corporation d/b/a AMI Leasing), Antoine's Auto Repair, Inc., Aquacultural Research Corporation, Ashland Motors, Inc., Atamian Volkswagen Inc. d/b/a Atamian Honda, Atlantic Waste Systems North (Wood Recycling, Inc.), Auto Service & Tire, Inc., Auto West, Automotive Consultants, Inc., Ayotte Plumbing Heating and Air Conditioning, B & B Auto Clinic, Inc., Bailey Distributing Corporation (Yeliab Corporation, Successor), Ballard Motor Sales Inc. (Ballard Mack Sales & Service Inc.), Bancroft Tire Center (H. Glick & Son's, Inc.), Bennett Service Station, Inc., Bert Libon Inc., BMW Gallery, Bob Innis and Son, Inc., Bob's Auto Repair Inc. (Bob's Auto Repair LLC), Bob's Auto Service, Boott Mills Hydro (Boott Hydropower, Inc.), Boston Harbor Cruises, Inc. (Harbor Cruises, LLC d/b/a Boston Harbor Cruises), Boston Public Health Commission, Boston Sand & Gravel Company, Bourne Bridge Auto Sales Inc. d/b/a Hyannis Saab, Bridge Marina, Inc., Bridgestone/Firestone North
In accordance with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9601
The proposed fourth settlement has been approved by the United States Department of Justice and, for the State portion of the settlement, by the State of New Hampshire. EPA will receive written comments relating to this settlement for thirty (30) days from the date of publication of this Notice.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before November 4, 2004. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts listed below as soon as possible.
Direct all comments to Kristy L. LaLonde, Office of Management and Budget (OMB), Room 10236 NEOB, Washington, DC 20503, (202) 395-3087 or via the Internet at
For additional information or copies of the information collections contact Les Smith at (202) 418-0217 or via Internet at
The Commission has requested approval of these six information collections under the emergency processing provisions of the PRA by September 30, 2004.
Federal Communications Commission.
Notice of public meeting.
This notice advises interested persons that the Federal Communications Commission is holding a symposium exploring the educational power of broadband. A news release announcing the event was released on September 8, 2004 and an expanded release with an agenda was released on September 29, 2004, both of which were posted on the Commission's website.
Wednesday, October 6, 2004, 9 a.m., to 4 p.m.
Interested persons may join the meeting at the Federal Communications Commission, Commission Meeting Room, Room TW-A402 and TW-A442, 445 12th St. SW., Washington, DC 20554.
Sarah Whitesell, 202-418-1941,
The purpose of the meeting is to explore ways to use broadband to facilitate learning in schools, libraries and the home. Among the presenters will be participants in the Schools and Libraries Universal Service program, also called “e-rate,” which was established as part of the Telecommunications Act of 1996 to provide affordable telecommunications services for all eligible schools and libraries, especially those in rural and economically disadvantaged areas. Speakers will also include teachers and librarians with first-hand experience using digital resources and assessing their impact on learning. The Federal Communications Commission will attempt to accommodate as many people as possible. However, admittance will be limited to the seating available. A live RealAudio feed will be available over the Internet; information on how to tune in can be found at the Commission's Web site
Federal Communications Commission.
Notice; report to congress.
This Report concludes the Commission's fourth inquiry under section 706 of the Telecommunications Act of 1996. This Report finds that the overall goal of section 706 is being met, and that advanced telecommunications capability is being deployed on a reasonable and timely basis to all Americans.
Regina Brown, Wireline Competition Bureau, Telecommunications Access Policy Division, (202) 418-7400, TTY (202) 418-0484.
This is a summary of the Commission's
1. Section 706 of the 1996 Telecommunications Act directs both the Commission and the states to encourage deployment of advanced telecommunications capability to all Americans on a reasonable and timely basis. In conjunction with this objective, Congress directed the Commission to conduct regular inquiries concerning whether advanced telecommunications capability is being deployed to all Americans on a reasonable and timely basis and, based on our findings, to take action to accelerate deployment, if necessary.
2. This
3. In the
4. Our existing definitions are not static. The success of first-generation broadband—at speeds of approximately 200 kbps—has prompted demand for ever-faster broadband networks and connections, and today most broadband providers are offering service well in excess of the minimum 200 kbps speed. The Commission currently has under consideration rule changes that will enable us to gather more information about these “next-generation” broadband networks and services for purposes of future reports.
5. This
6. The
7. Further, the
8. Broadband-based Internet services have also become a critical communications tool for the deaf and hard-of-hearing, through the use of Internet Protocol Relay (IP Relay) and Video Relay Service (VRS), two forms of telecommunications relay services (TRS) that rely on the Internet. This report shows that there has been more than a 640 percent increase in IP Relay usage and more than a 2,000 percent increase in VRS in the past two years.
9. In addition, more than 95 percent of public libraries and 92 percent of public school classrooms have Internet access. Use of broadband connections in schools with high minority enrollment increased from 81 percent to 95 percent between 2000 and 2002. During this same period, schools with the highest poverty concentration using broadband connections to access the Internet increased from 75 percent to 95 percent.
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). Currently, the FDIC is soliciting comments concerning the following collections of information titled: (1) Interagency Charter and Federal Deposit Insurance Application, and (2) Notice of Branch Closure.
Comments must be submitted on or before December 6, 2004.
Interested parties are invited to submit written comments to Steven F. Hanft (202-898-3907), Paperwork Clearance Officer, Room MB-3064, Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, DC 20429. All comments should refer to the OMB control number. Comments may be hand-delivered to the guard station at the rear of the 17th Street Building (located on F Street), on business days between 7 a.m. and 5 p.m. [FAX number (202) 898-3838].
A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Mark Menchik, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Steven F. Hanft, at the address identified above.
Proposal to renew the following currently approved collections of information:
1.
2.
Comments are invited on: (a) Whether these two collections of information are necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collections, including the validity of the methodologies and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collections on respondents, including through the use of automated collection techniques or other forms of information technology.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the collections should be modified prior to submission to OMB for review and approval. Comments submitted in response to this notice also will be summarized or included in the FDIC's requests to OMB for renewal of these collections. All comments will become a matter of public record.
Federal Housing Finance Board.
Notice.
In accordance with the requirements of the Paperwork Reduction Act of 1995, the Federal Housing Finance Board (Finance Board) has submitted the information collection entitled “Federal Home Loan Bank Directors” to the Office of Management and Budget (OMB) for review and approval of a three-year extension of the OMB control number, which is due to expire on October 31, 2004.
Interested persons may submit comments on or before November 4, 2004.
Submit comments to the Office of Information and Regulatory Affairs of the Office of Management and Budget, Attention: Desk Officer for the Federal Housing Finance Board, Washington, DC 20503.
Patricia L. Sweeney, Program Analyst, Office of Supervision, by telephone at 202/408-2872, by electronic mail at
Section 7 of the Federal Home Loan Bank Act (Bank Act) and the Finance Board's implementing regulation establish the eligibility requirements and the procedures for electing and appointing Federal Home Loan Bank (FHLBank) directors.
The Finance Board uses the information contained in the Appointed Director Eligibility Certification Form and part 915 to determine whether prospective and incumbent appointed FHLBank directors satisfy the statutory and regulatory eligibility requirements. The FHLBanks, and where appropriate, the Finance Board, use the information in the Elected Director Eligibility Certification Form and part 915 to determine whether elected FHLBank directors and director nominees satisfy the statutory and regulatory eligibility requirements. Only individuals meeting these requirements may serve as FHLBank directors.
The likely respondents include FHLBanks, FHLBank members, and prospective and incumbent FHLBank directors.
The OMB number for the information collection is 3069-0002. The OMB clearance for the information collection expires on October 31, 2004.
The Finance Board estimates that total number of respondents is 5010, which includes 12 FHLBanks, 4600 FHLBank members, and 398 prospective and incumbent FHLBank directors. As explained below, the Finance Board estimates that the total annual hour burden for all respondents is 4210 hours.
The Finance Board estimates the total annual average hour burden for each FHLBank to run the election of directors and process prospective and incumbent Elected Director Eligibility Certification Forms is approximately 234 hours. The estimate for the average hour burden for all FHLBanks is 2809 hours (12 FHLBanks × approximately 234 hours).
The Finance Board estimates the total annual average hour burden for all FHLBank members to participate in the director election process is 1150 hours. This includes 150 hours for FHLBank members to process director nomination forms (600 FHLBank members processing nomination forms × 0.25 hours) and 1000 hours for FHLBank members to vote in the director election (4000 FHLBank voting members × 0.25 hours).
The Finance Board estimates the total annual average hour burden for all FHLBank directors is 251 hours. This includes 155 hours for prospective FHLBank directors to complete and return Director Eligibility Certification Forms (206 prospective directors × 1 response per individual × 0.75 hours). It also includes 96 hours for incumbent FHLBank directors to complete and return Director Eligibility Certification Forms or updates, as appropriate (192 incumbent FHLBank directors × 1 response per individual × 0.5 hours).
In accordance with the requirements of 5 CFR 1320.8(d), the Finance Board published a request for public comments regarding this information collection in the
Written comments are requested on: (1) Whether the collection of information is necessary for the proper performance of Finance Board functions, including whether the information has practical utility; (2) the accuracy of the Finance Board's estimates of the burdens of the collection of information; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments should be submitted to OMB in writing at the address listed above.
By the Federal Housing Finance Board.
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
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 October 29, 2004.
In connection with this application, Applicant also has applied to retain Peoples Community Bank, West Chester, Ohio, and thereby engage in operating a savings association, pursuant to section 225.28(b)(4)(ii) of Regulation Y.
In connection with this application, Applicant also has applied to acquire voting shares of Guaranty Corporation, Denver, Colorado, and thereby indirectly acquire AMG Guaranty Trust, N.A., Greenwood Village, Colorado, and thereby engage in trust activities, pursuant to section 225.28(b)(5) of Regulation Y.
Board of Governors of the Federal Reserve System, September 30, 2004.
Notice of Meeting of Consumer Advisory Council
The Consumer Advisory Council will meet on Thursday, October 28, 2004. The meeting, which will be open to public observation, will take place at the Federal Reserve Board's offices in Washington, D.C., in Dining Room E on the Terrace level of the Martin Building. Anyone planning to attend the meeting should, for security purposes, register no later than Tuesday, October 26, by completing the form found on-line at: https://www.federalreserve.gov/secure/forms/cacregistration.cfm.
Additionally, attendees must present photo identification to enter the building.
The meeting will begin at 9:00 a.m. and is expected to conclude at 1:00 p.m. The Martin Building is located on C Street, NW, between 20th and 21st Streets.
The Council's function is to advise the Board on the exercise of the Board's responsibilities under various consumer financial services laws and on other matters on which the Board seeks its advice. Time permitting, the Council will discuss the following topics:
Other matters initiated by Council members also may be discussed.
Persons wishing to submit views to the Council on any of the above topics may do so by sending written statements to Ann Bistay, Secretary of the Consumer Advisory Council, Division of Consumer and Community Affairs, Board of Governors of the Federal Reserve System, Washington, D.C. 20551. Information about this meeting may be obtained from Ms. Bistay, 202-452-6470.
Board of Governors of the Federal Reserve System, September 29, 2004.
Board of Governors of the Federal Reserve System.
11:30 a.m., Tuesday, October 12, 2004.
Marriner S. Eccles Federal Reserve Board Building, 20th and C Streets, N.W., Washington, D.C. 20551.
Closed.
1. Personnel actions (appointments, promotions, assignments, reassignments, and salary actions) involving individual Federal Reserve System employees.
2. Any items carried forward from a previously announced meeting.
Michelle A. Smith, Director, Office of Board Members; 202-452-2955.
You may call 202-452-3206 beginning at approximately 5 p.m. two business days before the meeting for a recorded announcement of bank and bank holding company applications scheduled for the meeting; or you may contact the Board's Web site at
Board of Governors of the Federal Reserve System, October 1, 2004.
Assistant Secretary for Planning and Evaluation, HHS.
Notice of meeting.
This notice announces a public meeting of the Technical Advisory Panel on Medicare Trustee Reports (Panel). Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. App. 2, section 10(a)(1) and (a)(2)). The Panel will discuss the long-term rate of change in health spending and may make recommendations to the Medicare Trustees on how the Trustees might more accurately estimate health spending in the long run. The Panel's discussion is expected to be very technical in nature and will focus on the actuarial and economic methods by which Trustees might more accurately measure health spending. Although panelists are not limited in the topics they may discuss, the Panel is not expected to discuss or recommend changes in current or future Medicare provider payment rates or coverage policy.
October 15, 2004, 8 a.m.-4 p.m. e.d.t.
The meeting will be held at HHS headquarters at 200 Independence Ave., SW., 20201, Room 705A.
Jacob Kaplan at (202) 401-6119,
On April 22, 2004, we published a notice announcing the establishment and requesting nominations for individuals to serve on the Panel. The panel members are: Mark Pauly, Edwin Hustead, Alice Rosenblatt, Michael Chernew, David Meltzer, John Bertko, and William Scanlon.
42 U.S.C. 217a; Section 222 of the Public Health Services Act, as amended. The panel is governed by provisions of Public Law 92-463, as amended (5 USC Appendix 2), which sets forth standards for the formation and use of advisory committees.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 498-1210 or send an email to
Active Surveillance of Ciguatera in Culebra, Puerto Rico—New—National Center for Environmental Health (NCEH), Centers for Disease Control and Prevention (CDC).
Ciguatera fish poisoning (CFP) is a serious health threat to people in Puerto Rico. Many finfish that live in the island's coral reefs carry ciguatoxin. When people consume these finfish, they can get CFP, a condition that causes gastrointestinal and neurological symptoms. To quantify the health burden caused by CFP, the local department of health tallies the number of cases of CFP reported by health care providers on the island. A recent evaluation of this passive surveillance system determined that the majority of CFP cases that occur on the island are missed. To accurately quantify the health threat of CFP to the population in Puerto Rico, the National Center for Environmental Health, Centers for Disease Control and Prevention, in conjunction with the Puerto Rico Department of Health, will conduct active surveillance for CFP for twelve (12) months in Puerto Rico.
This active surveillance system will quantify the public health burden of CFP by determining the incidence, risk factors, and economic effect of CFP in Culebra, Puerto Rico. Household questionnaire, Part B will be administered to each household in Culebra every four (4) months for one (1) year. This questionnaire elicits information on household fish consumption and identifies individuals who have developed symptoms of CFP. A second questionnaire will be administered once individuals having symptoms compatible with CFP are identified. This second questionnaire explores personal risk factors, medical management, and costs incurred while the individuals were ill with CFP. To confirm the presence of ciguatoxin in affected areas, fish will be collected from local reefs, fish vendors, and any appropriate leftover fish from people with CFP. The fish will be analyzed by the U.S. Food and Drug Administration.
Ultimately, the information provided by this study will aid the Puerto Rico Department of Health in controlling the health threat of CFP. Quantifying the incidence, risk factors, and economic burden of CFP will guide the development of preventive strategies. The annualized burden to respondents is estimated to be 250 hours.
This gives notice under the Federal Advisory Committee Act (Public Law 92-463) of October 6, 1972, that the Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, Centers for Disease Control and Prevention (CDC), Department of Health and Human Services, has been renewed for a 2-year period, through September 18, 2006.
Joseph E. Salter, Committee Management Officer, CDC, 37 Executive Park Drive, Atlanta, Georgia 30329, telephone (404) 498-0090.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The Centers for Disease Control and Prevention (CDC) is soliciting nominations for possible membership on the Advisory Committee on Immunization Practices (ACIP). This committee provides advice and guidance to the Secretary of the Department of Health and Human Services, and the Director of the Centers for Disease Control and Prevention, regarding the most appropriate application of antigens and related agents for effective communicable disease control in the civilian population. The committee reviews and reports regularly on immunization practices and recommends improvements in the national immunization efforts.
The committee also establishes, reviews, and as appropriate, revises the list of vaccines for administration to children eligible to receive vaccines through the Vaccines for Children (VFC) Program.
Nominations are being sought for individuals who have expertise and qualifications necessary to contribute to the accomplishments of the committee's objectives. Nominees will be selected based upon expertise in the field of immunization practices; multi-disciplinary expertise in public health; expertise in the use of vaccines and immunologic agents in both clinical and preventive medicine; knowledge of vaccine development, evaluation, and vaccine delivery; or knowledge about consumer perspectives and/or social and community aspects of immunization programs. Federal employees will not be considered for membership. Members may be invited to serve up to four-year terms.
Consideration is given to representation from diverse geographic areas, both genders, ethnic and minority groups, and the disabled. Nominees must be U.S. citizens.
The following information must be submitted for each candidate: Name, affiliation, address, telephone number, and a current curriculum vitae. E-mail addresses are requested if available.
Nominations should be sent in writing and postmarked by November 19, 2004 to: Demetria Gardner, National Immunization Program, Centers for Disease Control and Prevention, 1600 Clifton Road, NE, Mailstop E-61, Atlanta, Georgia 30333. Telephone and facsimile submissions cannot be accepted.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following committee meeting.
It is the intent of NIOSH to support broad-based research endeavors in keeping with the Institute's program goals. This will lead to improved understanding and appreciation for the magnitude of the aggregate health burden associated with occupational injuries and illnesses, as well as to support more focused research projects, which will lead to improvements in the delivery of occupational safety and health services, and the prevention of work-related injury and illness. It is anticipated that research funded will promote these program goals.
Agenda items are subject to change as priorities dictate.
Price Connor, Ph.D., NIOSH Health Scientist, 1600 Clifton Road, NE, Mailstop E-20, Atlanta, Georgia 30333, telephone 404/498-2511, fax 404/498-2569.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Indian Health Services, HHS.
Notice to supplement the single-source cooperative agreement with the National Indian Health Board.
The Indian Health Service (IHS) announces a supplement to the single-source cooperative agreement award to the National Indian Health Board (NIHB) for costs in providing advice and technical assistance to federally recognized Tribes in the area of health care policy analysis and program development. Under the original cooperative agreement published in the
The program expansion supplement is issued under the authority of the Public Health Service Act, Section 301(a), and is included under the
1. Assistance to States, Tribal Governments, and the HHS Policy Academy to address the needs of young AI/AN adults with disabilities.
Assistance on this joint initiative of the Office of Disability, HHS and the IHS will result in the development of an action plan to address the needs of young AI/AN adults with disabilities who are between 16-30 years of age. It is necessary that the HHS Office of Disabilities and the States have access to the expertise and experience of the NIHB in order to meet the culturally diverse needs if AI/AN youth with disabilities. The involvement of NIHB in the Policy Academy will ensure that the HHS Office of Disabilities and the States are kept informed of the AI/AN consumer perspective throughout all activities. This task is consistent with the NIHB goal of improving access for AI/AN people to the programs of HHS.
2. Assistance to the Centers for Medicare and Medicaid Services (CMS) for outreach and education within the AI/AN community.
Funding has been transferred through an Intra-Agency agreement between CMS and the IHS to supplement the NIHB cooperative agreement. The NIHB will be tasked with implementing outreach and education activities specific to AI/AN beneficiaries regarding the Medicare-approved drug discount card and the transitional assistance program, both of which are authorized under the provisions of the Medicare Modernization Act. The CMS support for this initiative is in recognition of NIHB's capability to systematically disseminate pertinent and timely health care information to AI/AN Tribal Governments and Health Boards. The NIHB's dissemination activity is funded within the organization's present scope of work. This effort is also consistent with the NIHB goal of expanding access by AI/ANs to other programs of the HHS.
3. Assistance to the CMS in the development of a strategic plan for AI/ANs.
In recognition of the NIHB's status as the only national Indian organization that is representative of Tribal Governments and has expertise in AI/AN health issues, the CMS has transferred funds through a second Intra-Agency Agreement between CMS
4. Assistance in the implementation of the IHS Director's Health Promotion/Disease Prevention (HP/DP) Initiative.
The Director, IHS, has announced this initiative in conjunction with President Bush's “Healthier U.S. Initiative” and HHS Secretary Thompson's “Steps to a Healthier U.S.” to reduce health disparities among AI/AN people. This initiative is a strategic approach to strengthening prevention efforts to improve the health and wellness of AI/AN families through expanded collaboration with Federal and non-Federal partners. The IHS will support this prevention effort, in part, through a partnership with NIHB in promoting physical activity in AI/AN communities under a program called “Just Move it.” The NIHB will assist the IHS in managing this particular HP/DP Initiative by hosting a Web site for Tribal communities to become “Just Move It” partners, marketing this effort to Tribes, etc. These activities are consistent with the NIHB goals of systematically disseminating pertinent and timely health care information to AI/AN communities and establishing relationships with other organizations to serve as advocates for improved Indian health.
5. Assistance to the IHS in the evaluation of the current relationships between schools of public health and AI/AN communities.
In order to determine the current relationships between schools of public health and AI/AN communities, the NIHB will assist the IHS in developing a baseline report of research activities and existing partnerships. The NIHB will serve in an advisory capacity to the IHS and the Association of Schools of Public Health on this initiative. The organization has the expertise and experience to provide technical assistance on issues related to working in Indian Country such as infrastructure, Tribal Government protocols, cultural and legal aspects of sovereignty, and the appropriateness of products and deliverables. The objective of this effort will result in recommendations on improving the public health infrastructure in AI/AN communities. The purpose of this report is consistent with the NIHB goals of developing relationships with other organizations and professional groups in order to serve as an advocate for improved AI/AN health care.
This project has been awarded on a non-competitive, single-source basis. The NIHB is the only national AI/AN organization with health expertise that represents the interest of all federally recognized Tribes.
The program supplement to the original cooperative agreement has been awarded because of anticipated substantial programmatic involvement by IHS staff in the project. The substantial programmatic involvement includes the following:
(1) The IHS staff will have approval over the hiring of key personnel as defined by regulation or provision in the cooperative agreement.
(2) The IHS will provide technical assistance to the NIHB as requested and attend and participate in all NIHB board meetings.
Mr. Douglas Black, Director, Office of Tribal Programs, Office of the Director, Indian Health Service, 801 Thompson Avenue, Reyes Building, Suite 220 Rockville, Maryland 20852, (301) 443-1104. For grants information, contact Ms. Sylvia Ryan, Grants Management Specialist, Division of Grants Policy, 12300 Twinbrook Parkway, Suite 100, Rockville, Maryland 20852, (301) 443-5204.
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 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 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
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies Federal agencies of the laboratories currently certified to meet the standards of Subpart C of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines) published in the
If any laboratory has withdrawn from HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end, and will be omitted from the monthly listing thereafter.
This notice is also available on the Internet at
Mrs. Giselle Hersh or Dr. Walter Vogl, Division of Workplace Programs, SAMHSA/CSAP, Room 2-1035, 1 Choke Cherry Road, Rockville, Maryland 20857; 240-276-2600 (voice), 240-276-2610 (fax).
The Mandatory Guidelines were developed in accordance with Executive Order 12564 and section 503 of Pub. L. 100-71. Subpart C of the Guidelines, “Certification of Laboratories Engaged in Urine Drug Testing for Federal Agencies,” sets strict standards that laboratories must meet in order to conduct urine drug testing for Federal agencies. To become certified, an applicant laboratory must undergo three rounds of performance testing plus an on-site inspection.
To maintain that certification, a laboratory must participate in a quarterly performance testing program plus periodic, on-site inspections.
Laboratories which claim to be in the applicant stage of certification are not to be considered as meeting the minimum requirements expressed in the HHS Mandatory Guidelines. A laboratory must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA) which attests that it has met minimum standards.
In accordance with Subpart C of the Mandatory Guidelines, the following laboratories meet the minimum standards set forth in the Mandatory Guidelines:
*The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
The following laboratory is withdrawing from the NLCP on October 8, 2004: PharmChem Laboratories, Inc., 4600 N. Beach, Haltom City, TX 76137, 817-605-5300 (Formerly: PharmChem Laboratories, Inc., Texas Division; Harris Medical Laboratory).
Notice and request for comments.
As part of its continuing effort to reduce paperwork and respondent burden, Bureau of Customs and Border Protection (CBP) invites the general public and other Federal agencies to comment on an information collection requirement concerning the Canadian Border Boat Landing Permit. This request for comment is being made pursuant to the Paperwork Reduction Act of 1995 (Public Law 104-13; 44 U.S.C. 3505(c)(2)).
Written comments should be received on or before December 6, 2004 to be assured of consideration.
Direct all written comments to Bureau of Customs and Border Protection, Information Services Group, Room 3.2.C, 1300 Pennsylvania Avenue, NW., Washington, DC 20229.
Requests for additional information should be directed to Bureau of Customs and Border Protection, Attn.: Tracey Denning, Room 3.2.C, 1300 Pennsylvania Avenue NW., Washington, DC 20229, Tel. (202) 927-1429.
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13; 44 U.S.C. 3505(c)(2)). The comments should address: (1) 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; (2) the accuracy of the agency's estimates of the burden of the collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; (4) ways to minimize the burden including the use of automated collection techniques or the use of other forms of information technology; and (5) estimates of capital or start-up costs and costs of operations, maintenance, and purchase of services to provide information. The comments that are submitted will be summarized and included in the CBP request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record. In this document CBP is soliciting comments concerning the following information collection:
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 State of Florida (FEMA-1545-DR), dated September 4, 2004, and related determinations.
September 27, 2004.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of Florida is hereby amended to include 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 September 4, 2004:
Gadsden, Hamilton, Leon, Madison, and Wakulla Counties for [Categories C-G] under the Public Assistance program (already designated for debris removal and emergency protective measures (Categories A and B) under the Public Assistance Program and direct Federal assistance at 100 percent Federal funding of the total eligible costs for the first 72 hours.)
Glades, Hendry, and Union Counties for [Categories C-G] under the Public Assistance program (already designated for Individual Assistance and debris removal and emergency protective measures (Categories A and B) under the Public Assistance Program and direct Federal assistance at 100 percent Federal funding of the total eligible costs for the first 72 hours.)
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 Florida (FEMA-1561-DR), dated September 26, 2004, and related determinations.
September 26, 2004.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that, in a letter dated September 26, 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 Florida resulting from Hurricane Jeanne beginning on September 24, 2004, 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). Therefore, I declare that such a major disaster exists in the State of Florida.
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 assistance for debris removal and emergency protective measures (Categories A and B) under the Public Assistance program in the designated areas; Hazard Mitigation throughout the State; and any other forms of assistance under the Stafford Act you may deem appropriate
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. For a period of up to 72 hours, you are authorized to fund assistance for debris removal and emergency protective measures, including direct Federal assistance, at 100 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, William L. Carwile, III, 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 Florida to have been affected adversely by this declared major disaster:
The counties of Brevard, Hardee, Hernando, Highlands, Hillsborough, Indian River, Lake, Martin, Okeechobee, Orange, Osceola, Palm Beach, Pasco, Pinellas, Polk, Seminole, St. Lucie, Sumter, and Volusia for Individual Assistance.
The counties of Brevard, Citrus, DeSoto, Glades, Hardee, Hendry, Hernando, Highlands, Hillsborough, Indian River, Lake, Levy, Manatee, Marion, Martin, Okeechobee, Orange, Osceola, Palm Beach, Pasco, Pinellas, Polk, Seminole, St. Lucie, Sumter, and Volusia for Public Assistance (Categories A and B), including direct Federal assistance, at 100 percent of the total eligible costs for a period of up to 72 hours.
All counties within the State of Florida 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 notice amends the notice of a major disaster declaration for the State of Florida (FEMA-1561-DR), dated September 26, 2004, and related determinations.
September 27, 2004.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of Florida is hereby amended to include the following area among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of September 26, 2004:
Marion County for Individual Assistance (already designated for Public Assistance Categories A and B, including direct Federal assistance, at 100 percent of the total eligible costs for a period of up to 72 hours.)
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 State of Georgia (FEMA-1560-DR), dated September 24, 2004, and related determinations.
September 27, 2004.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of Georgia is hereby amended to include 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 September 24, 2004:
The counties of Baker, Bleckley, Calhoun, Camden, Dougherty, Emanuel, Grady, Hancock, Harris, Hart, Jeff Davis, Lanier, Long, McIntosh, Pike, Taliaferro, Toombs, Treutlen, Ware, Wayne, Webster, Wilcox, and Worth for Public Assistance.
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 State of Mississippi (FEMA-1550-DR), dated September 15, 2004, and related determinations.
September 27, 2004.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of Mississippi is hereby amended to include 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 September 15, 2004:
Clay, Monroe, Oktibbeha, and Winston Counties for Public Assistance.
Clarke, Forrest, George, Greene, Hancock, Harrison, Jackson, Jasper, Jones, Kemper, Lamar, Lauderdale, Lowndes, Neshoba, Newton, Noxubee, Perry, Stone, and Wayne Counties for Public Assistance [Categories C through G](already designated for Public Assistance Categories A and B, including direct Federal Assistance, at 100 percent of the total eligible costs for a period of up to 72 hours.)
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 State of North Carolina (FEMA-1546-DR), dated September 10, 2004, and related determinations.
September 27, 2004.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of North Carolina is hereby amended to include 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 September 10, 2004:
Alleghany and Wilkes Counties for Individual Assistance.
Ashe County for Individual Assistance (already designated for Public Assistance.)
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 State of North Carolina (FEMA-1553-DR), dated September 18, 2004, and related determinations.
September 27, 2004.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of North Carolina is hereby amended to include 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 September 18, 2004:
Alamance, Alleghany, Ashe, Caswell, Davidson, Forsyth, Graham, Guilford, Randolph, Rockingham, Stokes, Swain, and Wilkes Counties for Individual Assistance.
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 West Virginia (FEMA-1558-DR), dated September 20, 2004, and related determinations.
September 27, 2004.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that the incident period for this disaster is closed effective September 27, 2004.
Federal Emergency Management Agency (FEMA), Emergency Preparedness and Response (EP and R) Directorate, Department of Homeland Security (DHS).
Notice of proposed revision to an existing Privacy Act system of records.
Pursuant to the Privacy Act of 1974 (5 U.S.C. 552a), FEMA proposes to upgrade the system of records currently entitled “Student Application and Registration Records, FEMA/NETC/-017,” by amending the method of collecting the information from hard copy only to hard copy and electronic. FEMA is also modifying this system of records to reflect its transfer to DHS. Subsections 552a(e)(4) and (11) of Title 5, United States Code, provide that the public be given a 30-day period in which to comment on routine uses. The Office of Management and Budget (OMB), which has oversight responsibility under the Act, requires a 40-day period in which to review the proposed systems.
The proposed system of records will be effective November 15, 2004, unless comments are received that result in a contrary determination. The public, OMB and Congress are invited to comment on the proposed system of records.
We invite your comments on this system of records. Please address them to the Rules Docket Clerk, Office of the General Counsel, Federal Emergency Management Agency, room 840, 500 C Street, SW., Washington, DC 20472, (telefax) (202) 646-4536, or (email)
Rena Y. Kim, Privacy Act Officer, room 840, 500 C Street, SW., Washington, DC 20472; (telephone) (202) 646-3949.
Prior to March 1, 2003, FEMA was an independent agency within the Federal government. While operating as an independent agency, FEMA established this Privacy Act system of records.
This system of records contains information provided by individuals applying for courses offered by the National Fire Academy (NFA) and the Emergency Management Institute (EMI) on-campus and off-campus, by State and local training agencies, through selected colleges and universities, and through independent self-study. Information collected includes citizenship (city and country of birth for non-U.S. citizens), social security number or an alternate number that has been assigned in lieu of the social security number, name, mailing address, work phone number, alternate phone number, fax number, e-mail address, course code and title, course location, dates requested, course pre-requisite as described in the course catalog, special assistance request, name and address of the organization being represented, fire department identification number, current position and years in that position, category of the position, jurisdiction type, type of work for the organization, organization type, employment status, number of staff in the organization, size of population served by the organization, brief description of the activities or responsibilities as they relate to the course for which they are applying, primary responsibility and type of experience, number of years of experience, date of birth, sex, ethnicity and race. Information such as age, sex, and ancestral heritage are used for statistical purposes only and are provided on a voluntary basis. The social security number is necessary because of the large number of individuals who may have identical names and birth dates and whose identities can only be distinguished by their social security number. Disclosure of an individual's social security number is voluntary. However, if an applicant does not provide a social security number, a unique identification number will be substituted, which will affect the ability to retrieve complete training information on an applicant. The information is contained in the National Emergency Training Center (NETC) Admissions System. It will consist of computerized files and paper records retrieved by name or social security number.
Accordingly, we add DHS/EP and R/FEMA/NETC/017, of the FEMA Privacy Act systems of records to read as follows:
Student Application and Registration Records.
Unclassified.
NETC, 16825 South Seton Avenue, Emmitsburg, Maryland 21727-8998.
The system covers those individuals who apply for or take courses offered by FEMA's NFA or EMI. Courses are offered on-campus and off-campus, by State and local training agencies, through selected colleges and universities, and through independent self-study. Information can be obtained by individuals completing a general admissions application or by applying for a course electronically. Information may also be provided by a State or local training agency when the course has been taken through that agency.
Files include application forms and other information submitted either in hard copy or electronically by the applicant. Information collected includes, but is not limited to, U.S. citizenship (city and country of birth is also included for non-U.S. citizens), social security number or an alternate number that has been assigned in lieu of the social security number, name, mailing address, work phone number, alternate phone number, fax number, email address, course code and title, course location, dates requested, course pre-requisite as described in the course catalog, an indication if they require special assistance, name and address of the organization being represented, fire department identification number, current position and years in that position, category of the position, jurisdiction type, type of work for the organization, organization type, employment status, number of staff in the organization, size of population served by the organization, brief description of the activities or responsibilities as they relate to the course for which they are applying, primary responsibility and type of experience, number of years of experience, date of birth, sex, ethnicity and race. Information such as age, sex, and ancestral heritage are used for statistical purposes only. Personal information is provided on a voluntary basis. Failure to provide certain information being requested, however, may result in a delay in processing an application because the information provided may be insufficient to determine eligibility for the course. The social security number is necessary because of the large number of individuals who may have identical names and birth dates and whose identities can only be distinguished by their social security number. The social security number is used for record-keeping purposes,
Pub. L. 93-498, Federal Fire Prevention and Control Act of 1974, as amended; Pub. L. 93-288, Robert T. Stafford Disaster Relief and Emergency Assistance Act; Pub. L. 93-579, 44 U.S.C. 3101; Privacy Act of 1974; E.O. 12127; E.O. 12148; and Reorganization Plan No. 3 of 1978; 5 U.S.C. 301; Presidential Memorandum, “Electronic Government's Role in Implementing the President's Management Agenda,” July 10, 2002; 15 U.S.C. 2206, 44 U.S.C. 3101; 50 U.S.C. App. 2253 and 2281; E.O. 12127, 12148 and 9397; Title VI of the Civil Rights Act of 1964; and Section 504 of the Rehabilitation Act of 1973. Executive Order 9397 authorizes the collection of the social security number.
For the purpose of determining eligibility and effectiveness of NFA and EMI courses; to reimburse students under the Student Stipend Program, and to provide housing to students and other official guests of the NETC. Information such as age, sex, and ancestral heritage are used for statistical purposes only.
Information in this system may be disclosed as a routine use as follows:
1.
Records in this system do not qualify for the purpose of disclosure to consumer reporting agencies.
Copies of paper applications as well as information maintained electronically are stored in a work area that is locked when it is not staffed. The doors to the work area are kept closed and signs stating that access is limited to authorized personnel are posted on the doors. There is limited access given to persons who have a need to have access to the information to perform their official duties. Computerized records are stored in a database server in a secured file server room. Electronic records are stored on a file server in another building and backed up nightly. The backup tapes are stored in a separate area from the file server for seven days. After that they are placed in a safe in another building and retained for one year.
Records can be retrieved by an individual's last name or social security number.
The admissions contractor controls access to hardcopy records by keeping them in file cabinets when not being used and in a work area that is locked when it is not occupied by authorized personnel. The System Administrator controls access to the electronic files by use of passwords and the Admissions Specialist assigns rights to modules of the system based on work responsibility. The files are stored in a secure server room at FEMA's Emmitsburg facility. Records are maintained in accordance with Federal computer security standards.
Hard copy records are maintained for one year and nine months, at which time they are retired to the Federal Records Center. Records are retained for a total of 40 years. Computerized records are stored in a database server in a secured file server room. The same retention schedule that applies to paper records will be followed. This is consistent with the records retention schedule that has been developed for this system.
Senior Admissions Specialist, National Emergency Training Center, 16825 South Seton Avenue, Emmitsburg, Maryland, 21727-8998.
Individuals seeking notification and access to any records contained in the system of records, or seeking to contest its content, may inquire in accordance with instructions appearing at 6 CFR Part 5, subpart B, with specific reference to the verification of identity requirements of 6 CFR 5.21.
Requests for Privacy Act protected information must be made in writing, and clearly marked as a “Privacy Act Request.” The name of the requester, the nature of the record sought, and the required verification of identity must be clearly indicated. Requests should be sent to: Privacy Act Officer, DHS/FEMA Office of General Counsel (GL), room 840, 500 C Street, SW., Washington, DC 20472.
Certain public information such as name, organizational address, organizational telephone number, email address, position title, course code and title, and the dates the course was taken are made available. All reports are based on organizational information.
Same as Notification Procedure above.
Same as Notification Procedure above. State clearly and concisely the information being contested, the reasons for contesting it, and the proposed amendment to the information sought.
The sources are the individuals themselves, applicants to NFA or EMI courses, Federal employees, and FEMA employees and contractor support processing NFA or EMI course applications as part of their official duties.
None.
Federal Emergency Management Agency, Emergency Preparedness and Response Directorate, Department of Homeland Security.
Notice.
This notice announces the names of new members of the Emergency Preparedness and Response Directorate Performance Review Board.
Shirley Schell, Executive Resources Program Manager, Human Capital Division, 500 C Street, SW., Washington, DC 20742, 202-646-3297.
5 U.S.C. 4314 (c)(4) requires agencies to publish notice of Performance Review Board appointees in the
Office of the Chief Information Officer.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Request for reinstatement of an information collection for the application, qualification, and certification processes for participants in the Rehabilitation Mortgage Insurance program.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2502-0527) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-6974.
Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail
This Notice informs the public that the U.S. Department of Housing and Urban Development (HUD) has submitted to OMB, for emergency processing, a survey instrument to obtain information from faith based and community organizations on their likelihood and success at applying for various funding programs. This Notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Assistant Secretary for Water and Science, Department of the Interior.
Notice of intent to negotiate a contract between the Central Utah Water Conservancy District and Department of the Interior for prepayment of costs allocated to municipal and industrial water from the Bonneville Unit of the Central Utah Project, Utah County, Utah.
Public Law 102-575, Central Utah Project Completion Act, Section 210, as amended through Public Law 104-286 and Public Law 107-366, stipulates that: AThe Secretary shall allow for prepayment of the repayment contract between the United States and the Central Utah Water Conservancy District dated December 28, 1965, and supplemented on November 26, 1985, or any additional or supplemental repayment contract providing for repayment of municipal and industrial water delivery facilities of the Central Utah Project for which repayment is provided pursuant to such contract, under terms and conditions similar to those contained in the supplemental
Dates for public negotiation sessions will be announced in local newspapers.
Additional information on matters related to this Federal Register notice can be obtained by contacting Mr. Wayne Pullan, Program Coordinator, CUP Completion Act Office, Department of the Interior, 302 East 1860 South, Provo UT 84606-6154, (801) 379-1194,
Department of the Interior, Office of the Assistant Secretary—Water and Science, (Interior); Utah Reclamation Mitigation and Conservation Commission, (Mitigation Commission); Central Utah Water Conservancy District, (CUWCD).
Notice of availability of the Utah Lake Drainage Basin Water Delivery System, Final Environmental Impact Statement for the facilities and measures authorized in Sections 202(a)(1), 202(c), 207, and 302 of the Central Utah Project Completion Act (CUPCA), which is part of the Bonneville Unit of the Central Utah Project.
Pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969, as amended, Interior, CUWCD, and the Mitigation Commission (Joint-Lead Agencies), have issued a Final Environmental Impact Statement (FEIS) for the Utah Lake Drainage Basin Water Delivery System (Utah Lake System), Bonneville Unit, Central Utah Project. The FEIS addresses potential impacts related to construction and operation of the features proposed for the Utah Lake System. The FEIS is intended to satisfy disclosure requirements of the National Environmental Policy Act (NEPA) and will serve as the NEPA compliance document for contracts, agreements and permits that would be required for construction and operation of the Utah Lake System. The Joint-Lead Agencies intend to seek Clean Water Act compliance through Section 404(r) provisions by including a 404(b)(1) analysis within the FEIS and therefore an exemption from the requirements to obtain a Section 404 permit for construction. In addition to this notification, notices will be published in local newspapers.
Additional information on matters related to this notice can be obtained from Mr. Reed Murray at (801) 379-1237, or
Additional copies of the FEIS, and copies of the resource technical reports can be obtained from Ms. Laurie Barnett, Central Utah Water Conservancy District, 355 West University Parkway, Orem, Utah, 84058.
Copies are also available for inspection at:
Bureau of Land Management (BLM), Vale District.
Conference call for the John Day/Snake Resource Advisory Council.
The John Day/Snake Resource Advisory Council will have a conference call on November 8, 2004 at 7 p.m. Pacific Time.
The conference call participants will discuss the Draft Forest Service Vegetation Treatment Environmental Impact Statement (EIS).
The entire conference call is open to the public. To participate in the conference call, please submit a written request to the Vale District Office 10 days prior to the call.
Peggy Diegan, Management Assistant/Webmaster, Vale District Office, 100 Oregon Street, Vale, OR 97918 (541) 473-3144, or e-mail
Bureau of Land Management, Interior.
Notice of public meeting cancellation and rescheduling.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Eastern Washington Resource Advisory Council (RAC), will meet as indicated below.
The Eastern Washington Resource Advisory Council (EWRAC) meeting for October 7, 2004, at the Spokane District Office, Bureau of Land Management, 1103 North Fancher Road, Spokane, Washington, 99212-1275 is cancelled and rescheduled for November 8, 2004.
The rescheduled meeting on November 8, 2004 will start at 9 a.m. and adjourn about 4 p.m. Topics on the meeting agenda include:
• Fiscal Year 2004 Accomplishments.
• Fiscal Year 2005 Work Plan.
The RAC meeting is open to the public, and there will be an opportunity for public comments at 10:30 a.m.. Information to be distributed to Council members for their review is requested in written format 10 days prior to the Council meeting date.
Sandra Gourdin or Kathy Helm, Bureau of Land Management, Spokane District Office, 1103 N. Fancher Road, Spokane, Washington, 99212, or call (509) 536-1200.
Bureau of Land Management, Interior.
Announcement of meeting.
The Bureau of Land Management (BLM) announces that the Wild Horse and Burro Advisory Board will conduct a meeting on matters pertaining to management and protection of wild, free-roaming horses and burros on the Nation's public lands.
The Advisory Board will meet Monday, November 8, 2004, from 8 a.m., to 5 p.m., local time. This will be a one day meeting.
The Advisory Board will meet at the Reno Hilton, 2500 E. Second Street, Reno, Nevada 89595 (775) 789-2000.
Written comments pertaining to the Advisory Board meeting should be sent to: Bureau of Land Management, National Wild Horse and Burro Program, WO-260, Attention: Ramona Delorme, 1340 Financial Boulevard, Reno, Nevada, 89502-7147. Submit written comments pertaining to the Advisory Board meeting no later than close of business November 3, 2004.
Janet Neal, Wild Horse and Burro Public Outreach Specialist, 775-861-6583. Individuals who use a telecommunications device for the deaf (TDD) may reach
Under the authority of 43 CFR part 1784, the Wild Horse and Burro Advisory Board advises the Secretary of the Interior, the Director of the BLM, the Secretary of Agriculture, and the Chief of Forest Service, on matters pertaining to management and protection of wild, free-roaming horses and burros on the Nation's public lands. The tentative agenda for the meeting is:
The meeting site is accessible to individuals with disabilities. An individual with a disability needing an auxiliary aid or service to participate in the meeting, such as interpreting service, assistive listening device, or materials in an alternate format, must notify the person listed under
The Federal Advisory Committee Management Regulations (41 CFR 101-6.1015(b)), require BLM to publish in the
Members of the public may make oral statements to the Advisory Board on November 8, 2004, at the appropriate point in the agenda. This opportunity is anticipated to occur at 4 p.m., local time. Persons wishing to make statements should register with the BLM by noon on November 8, 2004, at the meeting location. Depending on the number of speakers, the Advisory Board may limit the length of presentations. At previous meetings, presentations have been limited to three minutes in length. Speakers should address the specific wild horse and burro-related topics listed on the agenda. Speakers must submit a written copy of their statement to the address listed in the
Participation in the Advisory Board meeting is not a prerequisite for submission of written comments. The BLM invites written comments from all interested parties. Your written comments should be specific and explain the reason for any recommendation. The BLM appreciates any and all comments, but those most useful and likely to influence decisions on management and protection of wild horses and burros are those that are either supported by quantitative information or studies or those that include citations to and analysis of applicable laws and regulations. Except for comments provided in electronic format, speakers should submit two copies of their written comments where feasible. The BLM will not necessarily consider comments received after the time indicated under the
In the event there is a request under the Freedom of Information Act (FOIA) for a copy of your comments, the BLM will make them available in their entirety, including your name and address. However, if you do not want the BLM to release your name and address in response to a FOIA request, you must state this prominently at the beginning of your comment. The BLM will honor your request to the extent allowed by law. The BLM will release all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, in their entirety, including names and addresses.
Speakers may transmit comments electronically via the Internet to:
Notice is hereby given that, on August 26, 2004, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is Accreditation Association for Ambulatory Health Care, Inc., (“AAAHC”) Wilmette, IL 60091. The nature and scope of AAAHC's standard development activities are: AAAHC develops and maintains standards of encourage the voluntary attainment of high-quality care in organizations providing health care services in ambulatory settings. The standards describe characteristics that AAAHC determines as indicative of an accreditable organization. The accreditation process involves self-assessment by a health care organizations, as well as a thorough review by AAAHC's expert surveyors to determine compliance with AAAHC standards. AAAHC updates its standards on a year basis, with input from many health care organizations and the public. The standards and survey procedures are contained in the
Notice is hereby given that, on August 23, 2004, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to Section 6(b) of the Act, the name and principal place of business of the standards development organization is: Accredited Standards Committee X9, Inc. (“ASC X9”), Annapolis, MD. The nature and scope of ASC X9's standards development activities are to develop and promote standards for the financial services industry in order to facilitate services and products. ASC X9's objectives are to support (maintain, enhance and promote use of) existing standards; facilitate development of new, open standards based upon consensus; incorporate nonproprietary items developed by other organizations where appropriate; provide a common source for all standards affecting the financial services industry; focus on concurrent and future standards needs of the financial services industry standards; and participate in and promote the development of international standards.
Additional information concerning ASC X9 may be obtained from Cynthia L. Fuller, Executive Director, Accredited Standards Committee X9, Inc., P.O. box 4035, Annapolis, MD 21403, Tel. (410) 267-7707.
Notice is hereby given that, on August 5, 2004, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to Section 6(a) of the Act, the name and principal place of business of the standards development organization is: American Optometric Association Commission on Ophthalmic Standards, St. Louis, MO. The nature and scope of AOA CmOS's standards development activities are: The AOA CmOS provides for voluntary, impartial ophthalmic product evaluation resulting in the issuance of a seal of acceptance for those ophthalmic products that meet published standards specifications developed by the AOA CmOS, including biological, laboratory, and/or clinical evolutions, or the issuance of a seal of certification for those ophthalmic products that meet standards already approved by accepted standards organizations and which are designated for use by the AOA CmOS. The AOA CmOS selects the categories of products to be evaluated and develops evaluation specifications/standards for those ophthalmic products using the American National Standard Institute's Third Party Certification Program principles (ANSI Z34. 1-1993). Product categories for which the AOA CmOS currently has approved standards are: (1) Glare reduction filters for video display terminals: (2) non-prescription sunglasses; (3) privacy filters for video display terminals; (4) anti-reflection interference coatings for video display terminals; (5) storage cases used by wearers of contact lenses; (6) suction cup devices used to remove rigid contact lenses from the human eye; and (7) ultraviolet absorbers and blockers. Additional categories are always under review. The AOA CmOS is a nine-member commission that abides by a strict Code of Conduct for reviewing any applications for seals of acceptance of certification and for developing approved evaluation specifications/standards.
Notice is hereby given that on August 17, 2004, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. § 4301
Pursuant to Section 6(b) of the Act, the name and principal place of business of the standards development organization is: Waste Equipment Technology Association, Washington, DC. The nature and scope of WASTEC's standards development activities are that WASTEC serves as the Secretariat for the American National Standards Institute (ANSI) Accredited Standards Committee Z245 on Equipment Technology and Operations for Wastes and Recyclable Materials. WASTEC facilitates the development of ANSI safety standards for solid waste equipment manufacturers and users.
For further information concerning WASTEC's standards development activities, please contact WASTEC's Executive Vice President, Gary Satterfield at (202) 244-4700.
The Department of Labor (DOL) has submitted the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35). A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Department of Labor (DOL). To obtain documentation, contact Darrin King on 202-693-4129 (this is not a toll-free number) or email:
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Occupational Safety and Health Administration (OSHA), Office of Management and Budget, Room 10235, Washington, DC 20503, 202-395-7316 (this is not a toll-free number), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
The Department of Labor (DOL) has submitted the following public information collection requests (ICRs) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35). A copy of each ICR, with applicable supporting documentation, may be obtained by contacting the Department of Labor (DOL). To obtain documentation, contact Darrin King on 202-693-4129 (this is not a toll-free number) or email:
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Occupational Safety and Health Administration (OSHA), Office of Management and Budget, Room 10235, Washington, DC 20503, 202-395-7316 (this is not a toll-free number), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Estimated Time Per Response: Varies from 4 hours to 5 hours and 30 minutes depending on establishment size.
The Department of Labor (DOL) has submitted the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). A copy of each ICR, with applicable supporting documentation, may be obtained by contacting the Department of Labor (DOL). To obtain documentation, contact Ira Mills on 202-693-4122 (this is not a toll-free number) or E-Mail:
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL, Office of Management and Budget, Room 10235, Washington, DC 20503 202-395-7316 (this is not a toll-free number), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) (44 U.S.C. 3506(c)(2)(A)). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment Standards Administration is soliciting comments concerning the proposed collection: (1) Comparability of Current Work to Coal Mine Employment; (2) Coal Mine Employment Affidavit; (3) Affidavit of Deceased Miner's Condition. A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this notice.
Written comments must be submitted to the office listed in the addresses section below on or before December 6, 2004.
Ms. Hazel M. Bell, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-3201, Washington, DC 20210, telephone (202) 693-0418, fax (202) 693-1451, e-mail
The Black Lung Benefits Act of 1977, as amended, 30 U.S.C. 901
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Department of Labor seeks the approval of the extension of this information collection in order to carry out its responsibility to determine eligibility for black lung benefits.
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.
Nuclear Regulatory Commission.
License amendment.
Christopher M. Regan, Senior Project Manager, Spent Fuel Project Office, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Telephone: (301) 415-1179; fax number: (301) 415-1179; e-mail:
By letter dated July 30, 2004, as supplemented August 13, 2004, General Electric Company submitted an application to the U.S. Nuclear Regulatory Commission (NRC or the Commission), in accordance with 10 CFR part 72, requesting the amendment of the General Electric—Morris Operation (GEMO) independent spent fuel storage installation (ISFSI) Materials License SNM-2500 and the associated Technical Specifications (TS) for the GEMO ISFSI located in Grundy County, Illinois. The amendment application requests changes to the GEMO Consolidated Safety Analysis Report to reflect the current condition of the fuel stored and only that equipment necessary for its safe storage. The major changes proposed include revisions to information regarding the spent fuel inventory, deletion of the requirement for ventilation exhaust vacuum, deletion of the requirement to have certain instrumentation operative for equipment that is no longer in service, a change in the methods to verify pool water quality, revision to the description of the company organization, and removal of “receipt” from the license which effectively will not permit the GEMO facility to accept shipment of any additional spent fuel. Commensurate changes to the Technical Specifications to reflect these revisions are also proposed. This application supersedes in its entirety, General Electric's amendment 10 application dated April 30, 1998, and amendment 11 application dated August 13, 2001. Amendment requests 10 and 11 were withdrawn by GEMO by letter dated March 1, 2004. This application was docketed under 10 CFR part 72; the GEMO ISFSI Docket No. 72-1. The amendment of an ISFSI license is subject to the Commission's approval. The Director, Office of Nuclear Material Safety and Safeguards, or his designee, will determine if the amendment presents a genuine issue as to whether public health and safety will be significantly affected and may issue either a notice of a hearing or a notice of proposed action and opportunity for a hearing in accordance with 10 CFR 72.46(b)(1) or take immediate action on the amendment in accordance with 10 CFR 72.46(b)(2).
In accordance with 10 CFR 2.390 of NRC's “Rules of Practice,” final NRC records and documents regarding this proposed action, including the application for license amendment dated July 30, 2004, as supplemented August 13, 2004, and supporting documentation, are publically available in the records component of NRC's Agencywide Documents Access and Management System (ADAMS). These documents may be inspected at NRC's Public Electronic Reading Room at
For the Nuclear Regulatory Commission.
This notice describes procedures to be followed with respect to meetings conducted by the Nuclear Regulatory Commission's (NRC's) Advisory Committee on Reactor Safeguards (ACRS) pursuant to the Federal Advisory Committee Act (FACA). These procedures are set forth so that they may be incorporated by reference in future notices for individual meetings.
The ACRS is a statutory group established by Congress to review and report on nuclear safety matters and applications for the licensing of nuclear facilities. The Committee's reports become a part of the public record.
The ACRS meetings are conducted in accordance with FACA; they are normally open to the public and provide opportunities for oral or written statements from members of the public to be considered as part of the Committee's information gathering process. ACRS reviews do not normally encompass matters pertaining to environmental impacts other than those related to radiological safety.
The ACRS meetings are not adjudicatory hearings such as those conducted by the NRC's Atomic Safety and Licensing Board Panel as part of the Commission's licensing process.
An agenda will be published in the
The following requirements shall apply to public participation in ACRS full Committee meetings:
(a) Persons who plan to make oral statements and/or submit written comments at the meeting should provide 35 copies to the DFO at the beginning of the meeting. Persons who cannot attend the meeting but wishing to submit written comments regarding the agenda items may do so by sending a readily reproducible copy addressed to the DFO specified in the
(b) Persons desiring to make oral statements at the meeting should make a request to do so to the DFO. If possible, the request should be made five days before the meeting, identifying the topic(s) to be discussed and the amount of time needed for presentation so that orderly arrangements can be made. The Committee will hear oral statements on topics being reviewed at
(c) Information regarding topics to be discussed, changes to the agenda, whether the meeting has been canceled or rescheduled, and the time allotted to present oral statements can be obtained by contacting the DFO.
(d) The use of still, motion picture, and television cameras will be permitted at the discretion of the Chairman and subject to the condition that the use of such equipment will not interfere with the conduct of the meeting. The DFO will have to be notified prior to the meeting and will authorize the use of such equipment after consultation with the Chairman. The use of such equipment will be restricted as is necessary to protect proprietary or privileged information that may be in documents, folders, etc., in the meeting room. Electronic recordings will be permitted only during those portions of the meeting that are open to the public.
(e) A transcript will be kept for certain open portions of the meeting and will be available in the NRC Public Document Room (PDR), One White Flint North, Room O-1F21, 11555 Rockville Pike, Rockville, MD 20852-2738. A copy of the certified minutes of the meeting will be available at the same location three months following the meeting. Copies may be obtained upon payment of appropriate reproduction charges. ACRS meeting agenda, transcripts, and letter reports are available through the NRC Public Document Room at
(f) Video teleconferencing service is available for observing open sessions of ACRS meetings. Those wishing to use this service for observing ACRS meetings should contact Mr. Theron Brown, ACRS Audio Visual Technician, (301-415-8066) between 7:30 a.m. and 3:45 p.m. Eastern Time at least 10 days before the meeting to ensure the availability of this service. Individuals or organizations requesting this service will be responsible for telephone line charges and for providing the equipment and facilities that they use to establish the video teleconferencing link. The availability of video teleconferencing services is not guaranteed.
In accordance with the revised FACA, the agency is no longer required to apply the FACA requirements to meetings conducted by the Subcommittees of the NRC Advisory Committees, if the Subcommittee's recommendations would be independently reviewed by its parent Committee.
The ACRS, however, chose to conduct its Subcommittee meetings in accordance with the procedures noted above for ACRS full Committee meetings, as appropriate, to facilitate public participation, and to provide a forum for stakeholders to express their views on regulatory matters being considered by the ACRS. When Subcommittee meetings are held at locations other than at NRC facilities, reproduction facilities may not be available at a reasonable cost. Accordingly, 25 additional copies (total of 50 copies) of the materials to be used during the meeting should be provided for distribution at such meetings.
If it is necessary to hold closed sessions for the purpose of discussing matters involving proprietary information, persons with agreements permitting access to such information may attend those portions of the ACRS meetings where this material is being discussed upon confirmation that such agreements are effective and related to the material being discussed.
The DFO should be informed of such an agreement at least five working days prior to the meeting so that it can be confirmed, and a determination can be made regarding the applicability of the agreement to the material that will be discussed during the meeting. The minimum information provided should include information regarding the date of the agreement, the scope of material included in the agreement, the project or projects involved, and the names and titles of the persons signing the agreement. Additional information may be requested to identify the specific agreement involved. A copy of the executed agreement should be provided to the DFO prior to the beginning of the meeting for admittance to the closed session.
Nuclear Regulatory Commission.
Weeks of October 4, 11, 18, 25, November 1, 8, 2004.
Commissioner's Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and closed.
9.25 a.m. Affirmation Session (public meeting) (tentative).
a. State of Alaska Department of Transportation and Public Facilities (Confirmatory Order Modifying License); appeals of LBP-04-16 by NRC staff and license (tentative).
b. Private Fuel Storage (Independent Spent Fuel Storage Installation) Docket No. 72-22-ISFSI (tentative).
c. USEC, Inc. (tentative).
d. Citizen's Awareness Network's (CAN) motion to dismiss the Yankee Rowe license termination proceeding or to re-notice it (tentative).
e. Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2); Licensing Board's certification of its ruling on “need to know” during discovery (tentative).
f. Final rulemaking to add new Section 10 CFR 50.69. “Risk-Informed Categorization and Treatment of Structures, Systems, and Components for Nuclear Power Reactors” (tentative).
10:30 a.m. Discussion of security issues (Closed—Ex.1).
1 p.m. Discussion of security issues (Closed—Ex. 1).
2:30 p.m. Discussion of security issues (Closed—Ex. 1)
9:30 a.m. Briefing on decommissioning activities and status (public meeting) (contact: Claudia Craig, 301-415-7276).
This meeting will be webcast live at the Web address—
1:30 p.m. Discussion of intragovernmental issues (Closed—Ex. 1& 9).
There are no meetings scheduled for the Week of October 18, 2004.
There are no meetings scheduled for the Week of October 25, 2005.
There are no meetings scheduled for the Week of November 1, 2004.
2 p.m. Briefing on plant aging and material degradation issues (public meeting) (Contact: Steve Koenick, 301-415-1239).
The meeting will be webcast live at the Web address—
9:30 a.m. Briefing on reactor safety and licensing activities (public meeting) (Contact: Steve Koenick, 301-415-1239).
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: Dave Gamberoni, (301) 415-1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
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 2055 (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
Postal Service.
Notice of implementation of changes to the Domestic Mail Classification Schedule.
This notice sets forth the changes to the Domestic Mail Classification Schedule to be implemented as a result of the Decision of the Governors of the United States Postal Service on the Opinion and Recommended Decision of the Postal Rate Commission Approving Stipulation and Agreement on Experimental Periodicals Co-palletization Dropship Discounts for High Editorial Publications, Docket No. MC2004-1. The attachment also reflects the changes resulting from the first co-palletization case, Docket No. MC2002-3.
October 3, 2004.
Daniel J. Foucheaux, Jr., (202) 268-2989.
On February 25, 2004, the United States Postal Service, in conformance with sections 3622 and 3623 of the Postal Reorganization Act (39 U.S.C. 101
Pursuant to 39 U.S.C. 3625, the Governors of the United States Postal Service acted on the PRC's recommendations on July 19, 2004. In the Decision of the Governors of the United States Postal Service on the Opinion and Recommended Decision of the Postal Rate Commission Approving Stipulation and Agreement on Experimental Periodicals Co-palletization Dropship Discounts for High Editorial Publications, Docket No. MC2004-1, the Governors of the Postal Service approved the recommended decision. In accordance with Resolution 04-5, the Board of Governors established an implementation date of October 3, 2004, on which the approved classification changes and discounts for the co-palletization experiment take effect. The attachments to the Governors' Decision, setting forth the classification changes ordered into effect by the Governors, are set forth below.
In accordance with the Decision of the Governors and Resolution No. 04-5 of the Board of Governors, the Postal Service hereby gives notice that the classification changes set forth below will become effective at 12:01 a.m. on October 3, 2004.
Attachments to the Decision of the Governors of the United States Postal Service on the Opinion and Recommended Decision of the Postal Rate Commission Approving Stipulation and Agreement on Experimental Periodicals Co-palletization Dropship Discounts for High Editorial Publications, Docket No. MC2004-1
In accordance with the requirement of Section 3506 (c)(2)(A) of the Paperwork Reduction Act of 1995 which provides opportunity for public comment on new or revised data collections, the Railroad Retirement Board (RRB) will publish periodic summaries of proposed data collections.
To enable the RRB to establish and maintain the record of compensation, employers are required to file with the RRB, in such manner and form and at such times as the RRB prescribes, reports of compensation of employees. The information reporting requirements are prescribed in 20 CFR 209.6 through 209.9 and 20 CFR 345.110. The RRB utilizes Form BA-3a, Annual Report of Compensation, Form BA-4, Report of Creditable Compensation Adjustments and Form BA-4 (Internet), Report of Creditable Compensation Adjustments, to secure the required information from railroad employers. Form BA-3a provides the RRB with information regarding annual creditable service and compensation for each individual who worked in the railroad industry in a given year. Forms BA-4 and BA-4 (Internet) provide for the adjustment of any previously submitted reports and also the opportunity to provide any service and compensation that had been previously omitted. Form BA-4 (Internet) collects essentially the same information as Form BA-4, but it consists of a series of screens which collects the necessary information and provides for the required notices and certifications. Employers also have the option of submitting the reports on the aforementioned forms, or, in like format by magnetic tape, tape cartridges, PC diskettes and CD-ROM as outlined in the RRB's Reporting Instructions to Employers. Submission of the creditable compensation reports is mandatory. One response is required of each respondent. No changes are proposed to Forms BA-3a, BA-4 and BA-4 (Internet).
Form BA-12, System Access Application, identifies employees who are allowed to use the internet to submit reporting forms to the RRB. This form also determines what degree of access (view only, data entry/modification or approval/submission) is appropriate for that employee. Form BA-12, an OMB approved form (3220-0199), is being incorporated into this information collection at the request of OMB. Completion of Form BA-12 is voluntary and is necessary only if an employer wants to submit data and reports via the internet. Minor editorial changes are being proposed to Form BA-12.
The completion time for Form BA-3a is estimated at between 33.3 hours per response for electronic submissions to 85 hours for manual paper responses. The completion time for Form BA-4 is estimated at 60 minutes per response. The completion time for Form BA-4 (Internet) is 15 minutes per response. The completion time for Form BA-12 is estimated at between 10 and 20 minutes. The RRB estimates that approximately 579 Form BA-3a's, 211 Form BA-4's, 1,000 Form BA-4 (Internet) and 350 Form BA-12's are completed annually.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The CBOE proposes to amend its Fee Schedule to reduce the fees charged to public customers for transactions in options on exchange-traded funds
In its filing with the Commission, the CBOE included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CBOE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
CBOE currently assesses public customer transactions in options on ETFs and HOLDRs the customer transaction fees that apply to index options.
The Exchange believes this fee reduction will help the Exchange to compete more effectively for order flow in these products. The Exchange intends to begin assessing the reduced fees on October 1, 2004. The Exchange will reassess the fee reduction as appropriate, and will file any modification to these transaction fees with the Commission pursuant to Section 19(b) of the Act.
The proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The proposed rule change has been designated by the CBOE as a “non-controversial” rule change pursuant to Section 19(b)(3)(A) of the Act
The foregoing rule change: (1) Does not significantly affect the protection of investors or the public interest, (2) does not impose any significant burden on competition, and (3) by its terms does not become operative for 30 days after the date of filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. The CBOE has requested that the Commission waive the 30-day pre-operative period and the five-day pre-filing notice requirement for “non-controversial” proposals and accelerate the operative date of the filing to October 1, 2004, to allow public customers to benefit from the reduced transaction fees in the subject options classes effective on that date. The Commission has determined to waive the five-day notice and the 30-day operative period as requested to permit public customers to benefit from the fee reduction without delay.
At any time within 60 days of the filing of the 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 proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File No. SR-CBOE-2004-61. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
All submissions should refer to File No. SR-CBOE-2004-61 and should be submitted on or before October 26, 2004.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
In FR Doc. E4-2354, issued on September 23, 2004,
“(cc) “Non-Industry Governor” or “Non-Industry committee member” means a Governor (excluding the Chief Executive Officer and any other officer of the NASD, the President of NASD Regulation)[, any Floor Governor, and the Chief Executive Officer of Amex)] or committee member who is: (1) A Public Governor or committee member; (2) an officer or employee of an issuer of securities listed on [Nasdaq or Amex, or]
In the corresponding paragraph describing the proposed rule text, appearing on page 57124, beginning in column 1, the first, second and third complete sentences in column 2 should read as follows:
“Under the proposed amendments, the “Industry Governor” definition will include persons with a consulting or employment relationship with “a market for which NASD provides regulation,” a term that embraces both markets with which NASD has entered a contract to provide regulatory services, and those in which NASD has an ownership interest. Because NASD has entered into a regulatory services agreement with Amex, and continues both to maintain an ownership interest in and to provide regulatory services to Nasdaq, the amended definition of “Industry Governor” will continue to encompass individuals who have a consulting or employment relationship with Amex or Nasdaq. NASD believes that, given the difficulty and expense involved in amending the NASD By-Laws when regulatory clients are added or deleted, substituting “a market for which NASD provides regulation” is preferable to identifying such clients by name in the By-Laws.”
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 list and trade the common stock (“Common Stock”) of Theravance, Inc. (“Theravance”). The Common Stock includes call and put rights.
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 III below. Nasdaq has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq proposes to list and trade the Common Stock under the NASD rules that generally apply to the listing, designation for the Nasdaq National Market, and trading of the first class of common stock.
Theravance has entered into an agreement with GlaxoSmithKline
As described in the registration statement filed by Theravance,
If GSK does not exercise its call right, each holder of Common Stock may exercise the put right described above during the period beginning on August 1, 2007, and ending on the 30th business day thereafter or as may be required under the Act or under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“Hart-Scott-Rodino Act”).
As set forth in the registration statement,
After September 1, 2012, GSK will have no restrictions on its ability to sell or transfer the Common Stock in the open market, in privately negotiated transactions or otherwise, and these sales or transfers could create a substantial decline in the price of the outstanding shares of Common Stock or, if these sales or transfers are made to a single buyer or group of buyers, could transfer control of the Common Stock to a third party.
In addition, the existence of the call right may limit the Common Stock from trading much above the call price of $54.25 per share even if Theravance's future growth and/or market conditions were to otherwise warrant a per share valuation in excess of that price. If the call right is exercised, the holders of Common Stock would participate in this increased valuation only to the extent of the $54.25 per share Common Stock redemption price for 50% of their shares.
Upon the occurrence of a triggering event (an insolvency event as described in the registration statement), the right of Theravance's shareholders to exercise the put with respect to 50% of their Common Stock will accelerate and commence immediately and continue for the 65 business days after such event or until a later date as required under the Act or under the Hart-Scott-Rodino Act. In the event the put notification is accelerated due to an insolvency event, GSK remains obligated to provide Theravance the funds necessary to effect the redemption of all shares of the Common Stock that are properly put or elect and arrange to purchase the Common Stock at the expiration of the period in which the put can be exercised, in compliance with applicable law.
In addition to all of the requirements normally applicable under Nasdaq rules to the listing and trading of common stock, the Common Stock initially will be made subject to certain additional listing criteria, which are essentially the listing criteria for “other securities” under NASD Rule 4420(f). Specifically, under NASD Rule 4420(f)(1):
(A) The issuer shall have assets in excess of $100 million and stockholders' equity of at least $10 million. In the case of an issuer which is unable to satisfy the income criteria set forth in paragraph (a)(1), Nasdaq generally will require the issuer to have the following: (i) assets in excess of $200 million and stockholders' equity of at least $10 million; or (ii) assets in excess of $100 million and stockholders' equity of at least $20 million;
(B) There must be a minimum of 400 holders of the security, provided, however, that if the instrument is traded in $1,000 denominations, there must be a minimum of 100 holders;
(C) For equity securities designated pursuant to this paragraph, there must be a minimum public distribution of 1,000,000 trading units; and
(D) The aggregate market value/principal amount of the security will be at least $4 million.
As envisioned in NASD Rule 4420(f)(3), prior to the commencement of trading of the Common Stock, Nasdaq will distribute a circular to members providing guidance regarding the features of the Common Stock and members' responsibilities, including suitability recommendations, when handling transactions and highlighting the characteristics and risks of the Common Stock. In particular, Nasdaq will inform members that customer confirmations involving the Common Stock should identify the security as a callable and puttable instrument and that a customer may contact the member for more information concerning the security.
Furthermore, given the put and call features of the Common Stock, the circular will indicate that Nasdaq suggests that transactions in the Common Stock be recommended only to investors whose accounts have been approved for options trading. If a customer has not been approved for options trading, or does not wish to open an options account, the member should ascertain whether the Common Stock is suitable for the customer. Pursuant to NASD Rule 2310, “Recommendations to Customers (Suitability),” and IM-2310-2, “Fair Dealing with Customers,” members must have reasonable grounds for believing that a recommendation to a customer regarding the purchase, sale or exchange of any security is suitable for such customer upon the basis of the facts, if any, disclosed by such customer as to his other security holdings and as to his financial situation and needs. In addition, members recommending a transaction in the Common Stock must, among other things, have a reasonable basis for believing that the customer can
The circular will identify the following specific risks associated with the Common Stock. The circular will note that members should inform their customers that the price at which the Common Stock will trade may be influenced, prior to the expiration of the put period, by the existence of the put right. The circular will also note that the final rate of return on the Common Stock may be less than the market price of the Common Stock, and that after the expiration of the put period the market price of the Common Stock may decline significantly. Furthermore, customers should be aware that after September 1, 2012, GSK will have no restrictions on its ability to sell or transfer the Common Stock in the open market, in privately negotiated transactions or otherwise, and that these sales or transfers could create a substantial decline in the price of the outstanding shares of the Common Stock or, if these sales or transfers were made to a single buyer or group of buyers, could transfer control of the Common Stock to a third party.
The Common Stock will be subject to all of the initial and continued listing requirements otherwise applicable to the first class of common stock designated for the Nasdaq National Market under NASD Rule 4420(a), (b) or (c), including, but not limited to, all otherwise applicable corporate governance requirements.
Nasdaq believes the proposal is consistent with the provisions of Section 15A of the Act,
Nasdaq does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received.
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. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-NASD-2004-144. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
Nasdaq has asked the Commission to approve the proposal on an accelerated basis to enable Nasdaq to accommodate the timetable for listing the Common Stock. In addition, Nasdaq believes that the proposal raises no new or novel issues. In this regard, Nasdaq notes that a national securities exchange previously has listed and traded callable puttable common stock.
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 association and, in particular, with the requirements of Section 15A(b)(6) of the Act
The Commission notes that the Common Stock has both call and put features. In particular, as described more fully above, GSK has the right to require Theravance to redeem 50% of the Common Stock held by each stockholder at $54.25 per share. If GSK elects to exercise its call right, it must provide written notice of its election to Theravance between June 1, 2007, and July 1, 2007, and the call must occur no later than July 31, 2007. If GSK declines to exercise its call right, each holder of Common Stock has the right to require Theravance to redeem up to 50% of the holder's Common Stock at $19.375 per share. Upon the occurrence of an insolvency event, as described in the registration statement filed by Theravance,
The listing and trading of a non-traditional equity security like the Common Stock raises several regulatory issues. For the reasons discussed below, the Commission believes that Nasdaq's proposal adequately addresses the concerns raised by the listing and trading of the Common Stock.
As noted above, in addition to being subject to the Nasdaq rules applicable to the initial and continued listing and trading of common stock, the Common Stock initially also will be subject to certain listing criteria applicable to “other securities” under NASD Rule 4420(f). The Commission notes that the protections of NASD Rule 4420(f) were designed to address the concerns attendant to the trading of innovative securities like the Common Stock.
The Commission notes that Nasdaq will distribute a circular to its members that provides guidance regarding members' compliance responsibilities and requirements, including heightened suitability recommendations, when handling transactions in callable puttable common stock, and that highlights the special risks and characteristics associated with the Common Stock. Specifically, among other things, the circular will inform members that customer confirmations involving the Common Stock should identify the security as a callable and puttable instrument and that a customer may contact the member for more information concerning the security.
Nasdaq represents that the circular also will indicate that, given the put and call features of the Common Stock, Nasdaq will suggest that transactions in the Common Stock be recommended only to investors whose accounts have been approved for options trading. Nasdaq further represents that, if a customer has not been approved for options trading, or does not wish to open an options account, the member should ascertain whether the Common Stock is suitable for the customer pursuant to NASD Rule 2310 and IM-2310-2. The Commission believes that the distribution of the circular should help to ensure that only customers with an understanding of the risks attendant to the trading of the Common Stock and who are able to bear the financial risks associated with transactions in the Common Stock will acquire and trade the Common Stock.
As noted above, Nasdaq represents that the circular will identify certain specific risks associated with the Common Stock. Specifically, the circular will note that members should inform their customers that the price at which the Common Stock will trade may be influenced by the existence of the put right prior to the expiration of the put period. The circular also will note that the final rate of return on the Common Stock may be less than the market price of the Common Stock, and that after the expiration of the put period the market price of the Common Stock may decline significantly. In addition, customers should be aware that after September 1, 2012, GSK will have no restrictions on its ability to sell or transfer the Common Stock in the open market, in privately negotiated transactions or otherwise, and that these sales or transfers could create a substantial decline in the price of the outstanding shares of the Common Stock or, if these sales or transfers are made to a single buyer or group of buyers, could transfer control of the Common Stock to a third party.
The Commission believes that, to some extent, the financial risks associated with the Common Stock could be minimized by the proposed listing criteria. In this regard, the Commission notes that in addition to satisfying the initial and continued listing requirements for the first class of common stock designated for the Nasdaq National Market under NASD Rule 4420(a), (b), or (c), including all otherwise applicable corporate governance requirements, the Common Stock also must meet the additional initial asset, equity, and distribution requirements described above.
The Commission notes that Nasdaq intends to rely on its current surveillance procedures governing equity securities to monitor trading in the Common Stock. Nasdaq represents that its surveillance procedures are adequate to properly monitor the trading of the Common Stock.
The Commission finds good cause for approving the proposal prior to the thirtieth day after the date of publication of notice thereof in the
For the foregoing reasons, the Commission finds that the proposal is consistent with the requirements of the Act and rules and regulations thereunder.
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change would update two sections of OCC's By-Laws pertaining to yield-based Treasury options. The proposed changes would conform those sections to the corresponding By-Law provisions governing index options.
In its filing with the Commission, OCC 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. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
Article XVI, Section 3(c) of OCC's By-Laws currently provides OCC with the authority to adjust outstanding options in a class of yield-based Treasury options in the event that an exchange decreases the multiplier. The proposed changes to Section 3(c) would simply provide for the possibility that an exchange might increase rather than decrease the multiplier and would grant OCC the flexibility to adjust any outstanding options accordingly. The proposed rule change is similar to a previously approved OCC rule change pertaining to the adjustment of index option contracts.
Article XVI, Section 4 of OCC's By-Laws currently provides OCC with the authority to fix the exercise settlement amount for exercised yield-based Treasury option contracts “in accordance with the best information available as to the correct settlement value of the underlying yield” if OCC determines that the settlement value of the underlying yield is unreported or otherwise unavailable for purposes of calculating the settlement amount for exercised contracts. Until recently, the Chicago Board Options Exchange (“CBOE”), on which yield-based Treasury options are traded, had a rule setting forth a specific method for determining the settlement value of the yield in the event the reporting authority failed to supply a settlement value. The CBOE rule setting forth that method, a random poll of a minimum of ten primary government bond dealers, was eliminated on December 2, 2003, when the Commission accepted for immediate effectiveness a CBOE rule filing deleting it. In that filing, CBOE adopted a provision stating that the settlement value would be determined in accordance with OCC's By-Laws and Rules.
The repeal of the CBOE rule prompted OCC to review its own rules governing the setting of exercise settlement values for yield-based Treasury options. OCC now proposes to amend Article XVI, Section 4 to give OCC substantially the same discretion in fixing exercise settlement values for yield-based Treasury options as it has under Article XVII, Section 4 governing index options.
As with index options, under Revised Article XVI, Section 4(a)(2) the settlement value of yield-based Treasury options would be fixed by an adjustment panel consisting of representatives of the exchange or exchanges on which the affected series of options is traded. Additionally, under Section 4(a)(3), in the event the adjustment panel delays fixing a settlement value beyond the expiration date of the affected series, the normal exercise by exception procedures would not apply. Instead, options that are in the money by one dollar or more would be deemed to have been irrevocably exercised prior to the expiration time.
OCC believes that the proposed rule change is consistent with the purposes and requirements of Section 17A of the Act, as amended, because it is designed to promote the prompt and accurate clearance and settlement of securities transactions, foster cooperation and coordination with persons engaged in the clearance and settlement of securities transactions, remove impediments to the mechanisms of a national system for the prompt and accurate clearance and settlement of securities transactions, and, in general, to protect investors and the public interest. The proposed changes promote these objectives by providing OCC with flexibility in responding to unanticipated events.
OCC does not believe that the proposed rule change would impose any burden on competition.
Written comments were not and are not intended to be solicited with respect to the proposed rule change, and none have been 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. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. All submissions should refer to File Number SR-OCC-2004-11. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
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”)
PCX proposes to amend its Schedule of Fees and Charges For Exchange Services in order to increase the Broker Dealer Surcharge by $.05 to $.25 per contract. The text of the proposed rule change is available at the Office of the Secretary, PCX, and at the Commission.
In its filing with the Commission, PCX 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. PCX has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to increase the Broker Dealer Surcharge by $.05 per contract from $.20 to $.25 per contract. PCX states that the rate increase is necessary to help narrow the gap in trading costs between PCX market makers and Broker Dealers as well as to help offset the costs associated with trading system enhancements that will allow for higher levels of transparency to Broker Dealers accessing the PCX markets.
The proposed rule change is consistent with Section 6(b) of the Act,
PCX does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments on the proposed rule change were neither solicited nor received.
The foregoing rule change establishes or changes a due, fee, or other charge imposed by the Exchange, and, therefore, 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. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File No. SR-PCX-2004-88. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
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 Phlx proposes to amend its schedule of dues, fees, and charges to revise its equity options payment for order flow program.
The Exchange recently amended its equity options payment for order flow program.
Specialist units
Specialist units may opt out entirely from the equity options payment for order flow program, as long as they notify the Exchange in writing by the 15th of the month.
If a specialist unit opts into the program, and does not request reimbursement of at least 50% of the total amount of payment for order flow funds collected from ROTs in the options for which that specialist unit is acting as the specialist, then that specialist unit will be required to pay payment for order flow fees for that month at the same rate as the ROTs.
The Exchange bills the ROTs and collects the payment for order flow fees from the ROTs on a monthly basis.
The Exchange may audit a specialist's payments to payment-accepting firms to verify the use and accuracy of the payment for order flow funds remitted to the specialists based on their certification.
The Exchange also continues to implement a quality of execution program.
The above referenced program was in effect for trades settling on or after August 2, 2004.
In SR-Phlx-2004-50, the Phlx also made a technical update to a footnote on the first page of the Exchange's Summary of Equity Option Charges by deleting a page reference and inserting a reference to a section header in its place.
The Exchange proposes to charge a payment for order flow fee on transactions by Phlx ROTs of $1.00 per contract for options on the QQQ, currently the most actively traded equity option, and $0.40 per contract for the remaining top 150 equity options, other than the QQQ.
The payment for order flow fee will be billed and collected on a monthly basis. Because the specialists are not being charged the payment for order flow fee for their own transactions, they may not request reimbursement for order flow funds in connection with any transactions to which they were a party.
Specialists will request payment for order flow reimbursements on an option-by-option basis. The collected funds will be used by each specialist unit to reimburse it for monies expended to attract options orders to the Exchange by making payments to order flow providers who provide order flow to the Exchange. They will receive their respective funds only after submitting an Exchange certification form identifying the amount of the requested funds.
Any excess payment for order flow funds will be carried forward to the next month by option and may not be applied retroactively to past deficits, which may be incurred when the specialist requests more than the amount collected.
Consistent with the Exchange's current equity options payment for order flow program, specialists units may opt out entirely from the program as long as they notify the Exchange in writing by the 15th of the month, or the next business day if the 15th of the month is not a business day. If a specialist unit opts out of the program by the 15th of the month, no payment for order flow charges will be incurred for either the specialist unit or ROTs for transactions in the affected options for that month.
In addition to opting out entirely from the program, specialists may opt out of the program on an option-by-option basis if they notify the Exchange in writing no later than three business days after the end of the month (which is before the payment for order flow fee is billed). If a specialist unit opts out of an option at the end of the month then no payment for order flow fees will be assessed on the applicable ROT(s) for that option. If a specialist unit opts out of the program in a particular option more than two times in a six-month period, it will be precluded from entering into the equity options payment for order flow program for that option for the next three months.
If a specialist unit opts into the program (and does not opt out of the program entirely by the 15th day of the month or by option by the third business day after the end of the month) and does not request reimbursement by option of at least 50% of the total amount of payment for order flow funds billed to and collected from ROTs for each option in which that specialist unit is acting as the specialist, then any excess payment for order flow funds remaining after the specialist has been reimbursed will be rebated, on a pro rata basis, to the affected ROTs for those particular options in which the 50% threshold was not met.
Consistent with current practice, the Exchange may audit a specialist's payments to payment-accepting firms to verify the use and accuracy of the payment for order flow funds remitted to the specialists based on their certification.
The Exchange will also continue to implement a quality of execution program.
The payment for order flow fees as set forth in this proposal would be in effect for trades settling on or after September 22, 2004.
Below is the text of the proposed rule change. Proposed new language is in
+ Subject to a maximum fee of $50,000, except for QQQ license fees of $0.10 per contract side—see [$50,000 “Firm Related” Equity Option and Index Option Cap.]
^ Specialists may also elect to pay a fixed fee monthly charge, see Specialist Unit Fixed Monthly Fee described below.
* ROTs are eligible for a $.08/contract side rebate and specialists who have not elected the fixed monthly fee are eligible for a $.07/contract side rebate for trades occurring as part of a dividend spread strategy.
⊕ These fees are waived from May 1, 2004 until August 31, 2004 for transactions in equity options that begin trading on the Exchange between January 1, 2004 and June 30, 2004.
Footnotes 9-13—no change.
In its filing with the Commission, the Phlx included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Phlx has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange represents that the purpose of the proposed rule change is to adopt a more competitive equity options payment for order flow program. Equity options payment for order flow programs are in place at each of the other options exchanges. The Exchanges states that the revenue generated by the $1.00 or $0.40 payment for order flow fees, as outlined in this proposal, is intended to be used by specialist units to compete for order flow in equity options listed for trading on the Exchange. The Exchange believes that, in today's competitive environment, changing its equity options payment for order flow program to compete more directly with other options exchanges is important and appropriate.
The Phlx states that the purpose of imposing the 50% threshold is to encourage specialists to have payment for order flow arrangements in place before electing to participate in the Exchange's equity options payment for order flow program.
The Exchange believes that its proposal to amend its schedule of dues, fees and charges is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were either solicited or received.
The foregoing proposed rule change has been designated as a fee change pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-PHLX-2004-60. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
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 September 23, 2004, the above numbered declaration is hereby amended to include Autauga, Barbour, Bibb, Blount, Bullock, Calhoun, Chilton, Choctaw, Clay, Coosa, Cullman, Dallas, Dale, Elmore, Etowah, Fayette, Franklin, Greene, Hale, Jefferson, Lamar, Lawrence, Lee, Lowndes, Macon, Marengo, Marshall, Marion, Montgomery, Perry, Pickens, Pike, Shelby, St. Clair, Sumter, Talladega, Tallapoosa, Tuscaloosa, Walker, Wilcox, and Winston as disaster areas due to damages caused by Hurricane Ivan occurring on September 13, 2004 and continuing.
In addition, applications for economic injury loans from small businesses located in the contiguous counties of Chambers, Cherokee, Cleburne, Colbert, DeKalb, Henry, Jackson, Lauderdale, Limestone, Madison, Morgan, Randolph, and Russell in the State of Alabama; Clay, Harris, Muscogee, Quitman, and Stewart in the State of Georgia; and Clarke, Itawamba, Kemper, Lauderdale, Lowndes, Monroe, Noxubee, and Tishomingo in the State of Mississippi may be filed until the specified date at the previously designated location. All other counties contiguous to the above named primary counties have previously been declared.
The economic injury number assigned to Georgia is 9AA500.
All other information remains the same,
As a result of the President's major disaster declaration on September 26, 2004, and a notice received from the Department of Homeland Security—Federal Emergency Management Agency—on September 27, 2004, I find that Brevard, Hardee, Hernando, Highlands, Hillsborough, Indian River, Lake, Marion, Martin, Okeechobee, Orange, Osceola, Palm Beach, Pasco, Pinellas, Polk, Seminole, St. Lucie, Sumter, and Volusia Counties in the State of Florida constitute a disaster area due to damages caused by Hurricane Jeanne occurring on September 24, 2004 and continuing. Applications for loans for physical damage as a result of this disaster may be filed until the close of business on November 26, 2004 and for economic injury until the close of business on June 27, 2005 at the address listed below or other locally announced locations: U.S. Small Business Administration, Disaster Area 2 Office, One Baltimore Place, Suite 300, Atlanta, GA 30308.
In addition, applications for economic injury loans from small businesses located in the following contiguous counties may be filed until the specified date at the above location: Alachua, Broward, Charlotte, Citrus, DeSoto, Flagler, Glades, Hendry, Levy, Manatee, and Putnam in the State of Florida.
The interest rates are:
The number assigned to this disaster for physical damage is 363508 and for economic injury the number is 9AA400.
In accordance with a notice received from the Department of Homeland Security—Federal Emergency Management Agency—effective September 22, 2004, the above numbered declaration is hereby amended to include Franklin, Lebanon, Montour, Tioga, and York counties as disaster areas due to damages caused by Tropical Depression Ivan occurring on September 17, 2004 and continuing.
In addition, applications for economic injury loans from small businesses located in the contiguous county of Steuben in the State of New York; and Baltimore, Carroll, Frederick, and Harford Counties in the State of Maryland may be filed until the specified date at the previously designated location. All other counties contiguous to the above named primary counties have previously been declared.
All other information remains the same,
In accordance with notices received from the Department of Homeland Security—Federal Emergency Management Agency—effective September 19 and 22, 2004, the above numbered declaration is hereby amended to establish the incident period for this disaster as beginning September 14, 2004 and continuing through September 19, 2004. The declaration is also amended to include the municipalities of Caguas and Vieques as disaster areas due to damages caused by Tropical Storm Jeanne. All other municipalities contiguous to the above named primary municipalities have previously been declared.
All other information remains the same,
In accordance with a notice received from the Department of Homeland Security—Federal Emergency Management Agency—effective September 24, 2004, the above numbered declaration is hereby amended to include Berkeley, Cabell, Jackson, Kanawha, Lincoln, Mason, Morgan, and Wood Counties as disaster areas due to damages caused by severe storms, flooding and landslides occurring on September 16, 2004, and continuing.
In addition, applications for economic injury loans from small businesses located in the contiguous counties of Boone, Clay, Fayette, Hampshire, Jefferson, Logan, Mingo, Nicholas, Putnam, Raleigh, and Wayne in the State of West Virginia; Athens, Gallia, Lawrence, and Meigs in the State of Ohio; Allegany and Washington Counties in the State of Maryland; and Clarke and Frederick Counties in the Commonwealth of Virginia may be filed until the specified date at the previously designated location. All other counties contiguous to the above named primary counties have previously been declared.
The economic injury number assigned to Maryland is 9AA200 and Virginia is 9AA300.
All other information remains the same,
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before November 4, 2004 to be assured of consideration.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before November 4, 2004 to be assured of consideration.
In order to comply with the mandate of section 999(a)(3) of the Internal Revenue Code of 1986, the Department of the Treasury is publishing a current list of countries which may require participation in, or cooperation with, an international boycott (within the meaning of section 999(b)(3) of the Internal Revenue Code of 1986).
On the basis of the best information currently available to the Department of the Treasury, the following countries may require participation in, or cooperation with, an international boycott (within the meaning of section 999(b)(3) of the Internal Revenue Code of 1986).
Bahrain, Kuwait, Lebanon, Libya, Oman, Qatar, Saudi Arabia, Syria, United Arab Emirates, Yemen, Republic of.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, 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 a continuing information collection, as required by the Paperwork Reduction Act of 1995. The OCC is soliciting comment concerning its information collection titled, “Transfer Agent Registration and Amendment Form—Form TA-1.” The OCC also gives notice that it has sent the information collection to OMB for review and approval.
You should submit your comments to the OCC and the OMB Desk Officer by November 4, 2004.
You should direct your comments to:
You can request additional information or a copy of the collection from John Ference, OCC Clearance Officer, or Camille Dixon, (202) 874-5090, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
The OCC is proposing to extend OMB approval of the following information collection:
National bank transfer agents use Form TA-1 to register or amend registration as transfer agents. The OCC uses the information to determine whether to allow, deny, accelerate, or postpone an application. The OCC also uses the data to more effectively schedule and plan transfer agent examinations.
National bank transfer agents must file amendments to Form TA-1 with the OCC within 60 calendar days following the date on which any information reported on Form TA-1 becomes inaccurate, misleading, or incomplete. Amendments to Form TA-1 are used by the OCC to schedule and plan examinations.
The Securities and Exchange Commission maintains complete files on the registration data of all transfer agents registered, pursuant to the Act. It utilizes the data to identify transfer agents and to facilitate development of rules and standards applicable to all registered transfer agents.
An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless the information
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Notices 437, 437-A, 438 and 466, Notice of Intention to Disclose.
Written comments should be received on or before December 6, 2004 to be assured of consideration.
Direct all written comments to Paul H. Finger, Internal Revenue Service, room 6516, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the notices should be directed to Carol Savage at Internal Revenue Service, room 6516, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622-3945, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Cognitive and Psychological Research Coordinated by Statistics of Income on Behalf of All IRS Operations Functions.
Written comments should be received on or before December 6, 2004 to be assured of consideration.
Direct all written comments to Paul H. Finger, Internal Revenue Service, room 6512, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of information collection should be directed to Carol Savage at Internal Revenue Service, room 6516, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622-3945, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service, Treasury.
Notice of proposed new Privacy Act system of records.
In accordance with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a, the Internal Revenue Service (IRS), Department of the Treasury, gives notice of a proposed Internal Revenue-wide system of records, Treasury/IRS 35.001-Reasonable Accommodation Request Records.
Comments must be received no later than November 4, 2004. The proposed system of records will be effective November 15, 2004, unless the IRS receives comments that would result in a contrary determination.
Comments should be sent to Chief, EEO and Diversity, Internal Revenue Service, Room 2422, 1111 Constitution Avenue, NW., Washington, DC 20224. Comments will be made available for inspection and copying in the IRS Freedom of Information Reading Room. An appointment for inspecting the comments can be made by contacting the library at (202) 622-5164.
Pat Mance or Teresa A. Bonham, National Headquarters EEO and Diversity Office, Internal Revenue Service, Department of the Treasury, Room 2422, 1111 Constitution Avenue, NW., Washington, DC 20224. Telephone number (202) 622-5410 or (202) 622-6786 (TDD).
The Internal Revenue Service (IRS) gives notice of a proposed new system of records entitled “Treasury/IRS 35.001-Reasonable Accommodation Request Records” that is subject to the Privacy Act of 1974. The IRS is establishing the system of records to facilitate the provision of reasonable accommodation by establishing procedures and a form for use in requesting such reasonable accommodation, as well as providing a record that the request was submitted. The request form initiates the agency's reasonable accommodation procedures and the system of records serves as the agency's record of the administrative events pertaining to the approval or disapproval of the requested accommodation. In implementing the procedures, a new “Reasonable Accommodation Request Form” will be implemented Servicewide.
The new system of records report, as required by 5 U.S.C. 552a(r) of the Privacy Act, has been submitted to the Committee on Government Reform of the House of Representatives, the Committee on Governmental Affairs of the Senate, and the Office of Management and Budget, pursuant to Appendix I to OMB Circular A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated November 30, 2000.
The proposed new system of records, entitled “Treasury/IRS 35.001-Reasonable Accommodation Request Records,” is published in its entirety below.
Reasonable Accommodation Request Records.
National Headquarters, Chief Counsel, and Business Units (Agency-Wide Shared Services, Appeals, Modernization & Information Technology Services (MITS), Taxpayer Advocate Service, Communications and Liaison, Criminal Investigation, Wage and Investment, Small Business/Self Employed, Large and Mid-sized Business, and Tax Exempt and Governmental Entities (TE/GE)). See “system managers and addresses” for location.
Applicants and current and former Internal Revenue Service employees with disabilities who request reasonable accommodation.
Employee's or applicant's name, occupational series and grade, operating division/function, office location and address, office telephone number, disability or medical condition, reasonable accommodation (RA) requested, explanation of how RA would assist the applicant in the application process and the employee in performing his/her job, deciding official's name and title, deciding official's telephone number, essential duties of the position, information relating to an individual's capability to satisfactorily perform the duties of the position he/she is either applying for or presently holds, relevant medical information, estimated cost of accommodation, action by deciding official, signature of employee/applicant, signature of the deciding official, signature of health care practitioner, social worker, or rehabilitation counselor, medical documentation and supporting documents relating to reasonable accommodation.
Title VII of the Civil Rights Act of 1964, as amended; Civil Rights Act of 1991; The Rehabilitation Act of 1973, 29
The purpose of the system is to implement uniform procedures to administer reasonable accommodation requests.
These records may be used:
(1) To disclose pertinent information to appropriate Federal, State, local, or foreign agencies responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, or license, where the disclosing agency becomes aware of a potential violation of civil or criminal law or regulations.
(2) To disclose information to a Federal, State, or local agency, maintaining civil, criminal or other relevant enforcement information or other pertinent information, which has requested information relevant to or necessary to the requesting agency's or the bureau's hiring or retention of an individual, or issuance of a security clearance, license, contract, grant or other benefit.
(3) To provide information to the Department of Justice for the purpose of litigating an action or seeking legal advice. Disclosure may be made during judicial processes.
(4) To disclose information in a proceeding before a court, adjudicative body, or other administrative body before which the agency is authorized to appear when (a) the agency, (b) any employee of the agency in his or her official capacity, (c) any employee of the agency in his or her individual capacity where the Department of Justice or the agency has agreed to represent the employee, or (d) the United States, when the agency determines that litigation is likely to affect the agency, is a party to litigation or has an interest in such litigation, and the use of such records by the agency is deemed to be relevant and necessary to the litigation or administrative proceeding and not otherwise privileged.
(5) To provide information to officials of labor organizations recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation.
(6) To provide information to third parties during the course of an investigation to the extent necessary to obtain information.
(7) To disclose information to the news media and the public, in accordance with guidelines contained in 28 CFR 50.2 in the same manner as permitted for Department of Justice officials, unless release would constitute an unwarranted invasion of personal privacy.
(8) To disclose information to a contractor to the extent necessary for the performance of a contract.
(9) To disclose information to an arbitrator, mediator, or similar person, and to the parties, in the context of alternative dispute resolution, to the extent relevant and necessary to permit the arbitrator, mediator, or similar person to resolve the matters presented, including asserted privileges.
(10) To disclose information to the Merit Systems Protection Board and the Office of Special Counsel in personnel, discrimination, and labor management matters when relevant and necessary to their duties.
(11) To disclose information to foreign governments in accordance with formal or informal international agreements when necessary to respond to a request for reasonable accommodation.
(12) To disclose information to the Office of Personnel Management and/or to the Equal Employment Opportunity Commission in personnel, discrimination, and labor management matters when relevant and necessary to their duties.
Paper and electronic records.
Date of reasonable accommodation request, employee/applicant for employment's name, record number, and Business Unit.
Access controls will not be less than those provided for by the Automated Information System Security Handbook, IRM 2(10)00, and the Manager's Security Handbook, IRM 1(16)12.
Records are maintained in accordance with Record Disposition Handbooks, IRM 1(15)59.1 through 1(15)59.32. Records related to specific individuals are to be maintained for the duration of employment. Aggregate data used to track the agency's performance are to be maintained for three years.
National Headquarters, Attn: Chief, EEO and Diversity, N:EEO, Room 2422/IR, 1111 Constitution Avenue, NW., Washington, DC 20224.
Chief Counsel, Attn: Director, EEO and Diversity Office, Suite 500, 950 L'Enfant Plaza, SW., Washington, DC 20024.
Business Units:
Agency-Wide Shared Services, Room 7554/IR; Communications and Liaison, Room 7230/IR; Taxpayer Advocate Service, Room 1314/IR; Criminal Investigation, Room 2242/IR; Attn: Director, EEO and Diversity Office, 1111 Constitution Avenue, NW., Washington, DC 20224.
Appeals, Attn: Director, EEO and Diversity Office, FCB, Suite 4200 E, 1099 14th Street, NW., Washington, DC 20005.
MITS, Attn: Director, EEO and Diversity Office, 5000 Ellin Road, B8-157, Lanham, MD 20706.
Small Business/Self Employed, Attn: Director, EEO and Diversity Office, 5000 Ellin Road, C3-275, Lanham, MD 20706.
Large and Mid-sized Business, Attn: Director, EEO and Diversity Office, 801 9th Street, Mint Building, M3-177, Washington, DC 20001.
TE/GE, Attn: Director, EEO and Diversity Office, 4050 Alpha Road, MS 1120, Dallas, TX 75244.
Wage and Investment Division, Attn: Director, EEO and Diversity, 401 W. Peachtree Street, Room 1619, Atlanta, GA 30365.
Individuals seeking access to any record contained in this system of records pertaining to themselves or seeking to contest its contents may inquire in accordance with instructions appearing in 31 CFR part 1, subpart C, Appendix B. Inquiries should be addressed as in “Record Access Procedures” below.
Individuals seeking access to any record contained in this system of records, or seeking to contest its content, may inquire in accordance with instructions appearing at 31 CFR part 1, subpart C, Appendix B. Inquiries should be addressed to the Chief, EEO and Diversity, Chief Counsel, or Business Units (Appeals, Modernization & Information Technology Services, Taxpayer Advocate Service, Communications and Liaison, Criminal Investigation, Wage and Investment, Small Business/Self Employed, Large and Mid-sized Business, and Tax Exempt and Governmental Entities) Directors, EEO and Diversity, servicing
Information given by an individual requesting accommodation(s), input from individual's manager, documentation from individual's medical practitioner, agency medical representative, contractors or offices relating to the issuance of accommodation(s).
None.
U.S.-China Economic and Security Review Commission.
Notice of open public hearing.
Notice is hereby given of the following hearing of the U.S.-China Economic and Security Review Commission.
The Commission is mandated by Congress to investigate and report to Congress annually on “the national security implications of the bilateral trade and economic relationship between the United States and the People's Republic of China.” Pursuant to this mandate, the Commission will be holding a public hearing in Seattle, Washington, October 14, 2004. The purpose of this hearing is to examine the impact of U.S.-China trade and investment on Pacific Northwest industries. The Commission will receive testimony from industry representatives, labor organizations, researchers and analysts of the aviation, aerospace, software, technology, agriculture, forest products and other key industries on: (1) How these industries have been affected by economic relations with China, and (2) how this may be indicative of broader trends for the U.S. economy. The Commission will also hear from witnesses on the economic development and other local effects on the region of trade and investment relations with China.
This event is part of a series of field hearings the Commission is holding to collect input from local industry and labor leaders, government officials, researchers, other informed witnesses and the public on the impact of U.S.-China trade and economic relations. Information on upcoming field hearings, as well as transcripts of past Commission hearings, can be obtained from the USCC Web site at
The Seattle, Washington hearing will be Co-chaired by Commissioner George Becker, Former International President of the United Steelworkers of America and AFL-CIO Vice President and Executive Council Member, and Commissioner Robert F. Ellsworth, Chairman and Founding Partner, Hamilton Apex Technology Ventures.
The hearing is designed to assist the Commission in fulfilling its mandate by exploring how U.S.-China trade and investment is impacting vital sectors of the U.S. economy. The Commission seeks to gain a better understanding of how Washington State and the aviation, technology, agriculture and other important regional industries have been impacted by U.S.-China economic relations. The Commission will also investigate how this is indicative of broader trends for the U.S. economy and the implications for U.S. economic and national security.
Copies of the hearing agenda will be made available on the Commission's Web site at
Thursday, October 14, 2004, 8:45 a.m. to 5 p.m. Pacific Daylight Time inclusive. A detailed agenda for the hearing will be posted to the Commission's Web site at
The hearing will be held at the Olympic Conference Room, 4th Floor, The Edgewater Hotel, Pier 67, 2411 Alaskan Way, Seattle, Washington. Garage parking is available across the street from the hotel at a daily rate of $7. Public seating is available on a first-come, first-served basis.
Any member of the public wishing further information concerning the hearing should contact Kathy Michels, Associate Director for the U.S.-China Economic and Security Review Commission, 444 North Capitol Street, NW., Suite 602, Washington, DC 20001; phone (202) 624-1409, or via e-mail at
The Commission was established in October 2000 pursuant to the Floyd D. Spence National Defense Authorization Act Section 1238, Public Law 106-398, 114 STAT. 1654A-334 (2000) (codified at 22 U.S.C. 7002 (2001), as amended, and the “Consolidated Appropriations Resolution of 2003,” Public Law 108-7 dated February 20, 2003.
In rule document 04-21852 beginning on page 58353 in the issue of Thursday, September 30, 2004 make the following correction:
On page 58353, in the third column, in the
In rule document 04-22002 beginning on page 58261 in the issue of Thursday, September 30, 2004 make the following corrections:
(1) On page 58261, in the third column, in the second paragraph, in the next to last line “new types of subscription” should read “new subscription”.
(2) On page 58262, in the first column, in the second paragraph, in the eighth line “types of subscription services” should read “subscription services”.
Rural Business-Cooperative Service, USDA.
Proposed rule.
Rural Business-Cooperative Service proposes to implement a program for making grants, loan guarantees, and direct loans to farmers and ranchers (agricultural producers) or rural small businesses to purchase renewable energy systems and make energy efficiency improvements. The Farm Security and Rural Investment Act of 2002 (2002 Act) established the Renewable Energy Systems and Energy Efficiency Improvements Program. This program will help farmers, ranchers, and rural small businesses to reduce energy costs and consumption.
Written comments on this proposed rule must be received on or before November 4, 2004 to be assured of consideration. The comment period for the information collection under the Paperwork Reduction Act of 1995 continues through November 4, 2004.
You may submit comments to this rule by any of the following methods:
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Georg A. Shultz, Special Advisor for Renewable Energy Policy and Programs, Office of the Deputy Administrator Business Programs, U.S. Department of Agriculture, Mail Stop 3220, 1400 Independence Ave., SW., Washington, DC 20250-3220, Telephone: (202) 720-2976.
The information presented in this preamble is organized as follows:
The Farm Security and Rural Investment Act of 2002 (2002 Act) established the Renewable Energy Systems and Energy Efficiency Improvements Program under Title IX, Section 9006. The 2002 Act mandates that the Secretary of Agriculture create a program to make loans, loan guarantees, and grants to “a farmer, rancher, or rural small business” to purchase renewable energy systems and make energy efficiency improvements. The purpose of the program is to help agricultural producers and rural small businesses to reduce energy costs and consumption. The 2002 Act mandates the maximum percentage that the Agency will provide in funding for these projects. Grant funding is limited to 25 percent of the eligible project cost and will be made only to those who demonstrate financial need. Guaranteed loans and direct loans are each limited to 50 percent of the eligible project costs. Lastly, the Agency may fund up to 50 percent of the eligible cost for any combination of grants, guaranteed loans, and direct loans per project under this program.
In determining the amount of a grant, guaranteed loan, or direct loan for renewable energy systems and energy efficiency improvements, the 2002 Act requires the Agency to take into consideration, as applicable, the following factors:
1. The type of renewable energy system or energy efficiency improvement to be purchased;
2. The estimated quantity of energy to be generated by the renewable energy system or energy efficiency improvement;
3. The expected environmental benefits of the renewable energy system or energy efficiency improvement;
4. The extent to which the renewable energy system or energy efficiency improvement will be replicable;
5. The demonstrated amount of energy savings expected to be derived from this activity or project;
6. The estimated length of time it would take for the energy savings generated by the project to equal the cost of the activity or project; and
7. Other appropriate factors.
Due to time constraints for implementing this program, the Agency decided to institute only the grant program for FY 2003. Therefore, a NOFA inviting applications to purchase renewable energy systems and make energy efficiency improvements under the grant program was published in the
In developing the proposed rule, the Agency relied on several main components. First, the rule needs to be consistent with the requirements specified in the 2002 Act. Thus, some of the proposed requirements are statutorily-based. Second, Rural Development is proposing to implement the grant and guaranteed loan program based on the requirements outlined in the NOFA published on April 8, 2003, including stakeholder comments. Third, in proposing the guaranteed loan program, the Agency is proposing requirements based on the experience of other loan programs (
Based on experience, the Agency is proposing to require applicants and borrowers as well as their proposed projects to meet certain eligibility requirements to ensure that the funds available under this program are disbursed to those who meet the target market in the 2002 Act. To assess the eligibility and viability of proposed projects, applicants will be required to provide certain information.
Because of limitations of available funds, the Agency is proposing criteria to score and rank eligible projects to determine those projects that are funded first. To make funds available to more agricultural producers and rural small businesses, the Agency is proposing limits to maximum funding levels. In addition, minimum funding levels are being proposed to help ensure that most projects that have beneficial aspects of energy production and energy savings in rural areas can be considered for assistance.
Finally, the Agency is proposing processing and servicing requirements, which are necessary for any grant and guaranteed loan program.
With regards to the direct loan program, the Agency has chosen not to promulgate a regulation for the direct loan program under section 9006 at this time because we believe the government needs to have options for dealing with change and innovation within the renewable energy industry. By allowing the Agency to tailor the direct program to specific needs that are not properly addressed by either the grant or guarantee gives the government some flexibility in dealing with the ever changing and evolving nature of the renewable energy industry. As funding is provided for this purpose, the Agency will develop the appropriate rules, terms, conditions and criteria for the direct loan program that will address the specific direct loan needs for renewable energy at that time. Finally, the implementation of a direct loan program can require significant staffing and resources, which the Agency does not currently have. By implementing a direct loan program tailored to specific needs at a later time, the Agency will be in a better position to allocate the necessary staff and resources to implement a direct loan program. For these reasons, the Agency is not proposing a specific direct loan program at this time, but is instead identifying the process for developing a direct loan program and the information that would be included in the direct loan program.
The Agency is requesting comments on the overall program being proposed. The Agency is especially interested in comments on the following areas:
1. The rule sets a minimum funding amount of $2,500. How would this minimum value affect the projects most likely to otherwise use this program?
2. The rule does not allow non-traditional lenders to participate in the program. Is this appropriate for renewable energy projects or would some non-traditional lenders be likely to lend funds for this type of activity if the rule did not prohibit their participation?
3. Are there ways to improve, streamline, or simplify the application process for the program? The Agency is particularly interested in the views of program applicants and other interested stakeholders. The Agency will consider comments based on its need to assess the eligibility and viability of proposed projects. Applicants and the Agency must meet all applicable laws, regulations and executive orders. The applicants must provide the Agency and other agencies with appropriate information so that all compliance issues can be addressed and competing applications can be evaluated in a fair and objective process. The Agency will balance the above criteria, where possible, with the need to establish information requirements commensurate with the scale and complexity of the proposed renewable energy system or energy efficiency improvement.
Comments are to be submitted as indicated in the
The Agency believes that a 30-day comment period, rather than a 60-day comment period, is sufficient for soliciting public comments on this proposed rulemaking. First, the stakeholders are already very familiar with the grant and guaranteed loan program being proposed. The Agency issued two Notices of Funds Availability (NOFAs) for grant programs under section 9006, one in fiscal year (FY) 2003 and one in FY 2004, and requested public comments on both NOFAs. In addition, the Agency's current Business and Industry (B&I) guaranteed loan program forms the basis of the proposed guaranteed loan program. Second, in developing the proposed program, the Agency considered all of the comments received on the NOFAs and used its experience with the NOFAs in developing the proposed rule. Third, the Agency hosted a national public stakeholders forum for constituents on December 3, 2002, which was simulcast nationwide over the Internet. At this forum, attendees expressed their views on the implementation of section 9006. There was significant participation with both oral and written comments, which were also considered in the development of the proposed rule. Finally, the grant program is identical to the latest NOFA and there are only a few differences being proposed between the section 9006 guaranteed loan program and the existing B&I guaranteed loan program. For these reasons, the Agency believes that 30 days is sufficient for the stakeholders to understand the proposed program and to provide comment on it. If additional time is required, stakeholders can always request an extension of the public comment period.
There exist thousands of agricultural producers and rural small businesses engaged in meeting the needs of the nation's growing population. The potential contribution of this group toward meeting the national goal of conserving and reducing energy usage nationwide is great. In implementing this program, the Agency encourages agricultural producers and rural small businesses to utilize commercially available technologies.
Throughout this preamble, we use the term “applicant,” “borrower,” and “grantee” in describing the proposed grant and loan program. The term “applicant” refers to the entity seeking
In summary, when the phrase “applicant or borrower” is used in the preamble, it refers to the agricultural producer or rural small business seeking the grant, guaranteed loan, or direct loan. When just the term “applicant” is used, it refers to the entity (agricultural producer, rural small business, or lender) submitting the application, as described in the above paragraph.
To be eligible to receive a grant or guaranteed loan, an applicant or borrower must meet each of the five criteria, as applicable, identified below. These criteria were selected because they are identified in Section 9006 of the 2002 Act.
1. To receive a grant or guaranteed loan, the applicant or borrower must be an agricultural producer (farmer or rancher) or a rural small business;
2. If the applicant or borrower is an individual, the applicant or borrower must be a citizen of the United States (U.S.) or reside in the U.S. after being legally admitted for permanent residence;
3. Entities must be at least 51 percent owned, directly or indirectly, by individuals who are either citizens of the U.S. or reside in the U.S. after being legally admitted for permanent residence;
4. If the applicant or borrower is applying as a rural small business, both the applicant's or borrower's business headquarters and the proposed project must be in a rural area; and
5. For grants only, the applicant must have demonstrated financial need.
Any applicant, borrower, or owner that has an outstanding Federal judgment, is delinquent in paying Federal income taxes, or is delinquent on a Federal debt is ineligible to receive a grant or guaranteed loan under this program. This condition is consistent with standard Agency practice for funding programs.
The proposed rule contains criteria to determine if an applicant's proposed project is eligible to receive funds or guarantees under the Renewable Energy Systems and Energy Efficiency Improvements Program. To be eligible, the proposed project is required to meet the following criteria, as applicable:
1. The project must be for the purchase of a renewable energy system or to make energy efficiency improvements;
2. The project must be for a replicable, pre-commercial or a replicable, commercially available technology;
3. The project must be technically feasible;
4. The project must be located in a rural area;
5. The applicant or borrower must be the owner of the system and control the operation and maintenance of the proposed project. However, a qualified third-party operator will be allowed to manage the operation and/or maintenance of the proposed project; and
6. All projects must be based on satisfactory sources of revenues in an amount sufficient to provide for the operation and maintenance of the system or project.
Projects that are still in the research and development stage are not eligible for funds under this program, because the 2002 Act requires projects to be “replicable” and the Agency does not believe projects that are in the research and development stage meet this statutory requirement. In addition, a project for which construction has been initiated will not be considered by the Agency because the necessary environmental assessment cannot be conducted in accordance with the National Environmental Protection Act.
The technical feasibility of each proposed project will be based on all of the information provided by the applicant and on other sources of information, such as recognized industry experts in the applicable technology field, as necessary. If the project is determined to be not technically feasible, the applicant will be notified in writing of this determination and the reasons therefore. The rule allows the applicant or borrower to appeal such determinations.
Funds may be used only for certain specified project costs, provided these costs are an integral and necessary part of the total project. Funds received under 7 CFR part 4280, subpart B, cannot be used for any other project costs. The eligible project costs are:
1. Post-application purchase and installation of equipment, except agricultural tillage equipment and vehicles. Vehicles are considered to be any powered mobile equipment, including but not limited to cars and tractors;
2. Post-application construction or project improvements, except residential;
3. Energy audits or assessments;
4. Permit fees;
5. Professional service fees, except for application preparation;
6. Feasibility studies;
7. Business plans;
8. Retrofitting;
9. Construction of a new facility only when the facility is used for the same purpose; is approximately the same size; and, based on the energy audit, will provide more energy savings than improving an existing facility. Only costs identified in the energy audit for energy efficiency projects are allowed;
10. Working capital (guaranteed loans only); and
11. Land acquisition (guaranteed loans only).
The Agency selected these items as eligible project costs because they are integral to the acquisition or construction of eligible projects and these items are necessary for the successful implementation and quality assurance of the project; and allowing these costs provides for support of actual purchase of a renewable energy system and energy efficiency improvements. The Agency is allowing working capital and land acquisition as an eligible project costs for guaranteed loans because the Agency wants to ensure that the relatively limited percentage of grant funds (25 percent for grants versus 50 percent for guaranteed loans) are used for the renewable energy system or energy efficiency improvement project itself.
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To encourage wide participation and distribution of funds, the Agency has established levels of available funding for both funding programs. The following paragraphs discuss maximum
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As required by the 2002 Act, the amount of grant funds made available to an applicant for an eligible project must not exceed 25 percent of eligible project costs. The remaining funds needed to complete the project must come from other sources. The applicant may use third-party, in-kind contributions as part of the remaining funds. Third-party, in-kind contributions, however, cannot exceed 10 percent of the matching funds provided by other sources.
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The amount of guaranteed loan funds made available to an applicant or borrower for an eligible project will not exceed 50 percent of eligible project costs.
For guaranteed loans, the total amount of Agency loans to one borrower will be limited to no more than $10 million. The percentage of the guarantee, which will be negotiated between the lender and the borrower, cannot exceed 85 percent for loans of $600,000 or less; 80 percent for loans greater than $600,000 but up to $5 million; and 70 percent for loans greater than $5 million but up to $10 million.
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The interest rate for a guaranteed loan is to be based on indices, such as money market indices, that are published in a recognized banking industry source. As in the Agency's B&I program, the interest rate can not be more than that rate customarily charged borrowers in similar circumstances in the ordinary course of business and is subject to Agency review and approval.
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i. For real estate, 30 years.
ii. For machinery and equipment, 15 years, or the useful life, whichever is less.
iii. For repayment for combined loans on real estate and equipment, 20 years.
iv. For working capital, 7 years.
The first installment of principal and interest will, if possible, be scheduled for payment after the project is operational and has begun to generate income.
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Consistent with standard Agency policy, appeals will be handled in accordance with 7 CFR part 11. Any party adversely affected by an Agency decision under this subpart may request a determination of appealability from the Director, National Appeals Division, USDA, within 30 days of the adverse decision.
This rule will require the applicant or borrower to carry certain types of insurance. The insurance requirements are consistent with other Rural Development programs and are applicable to this program. All insurance must be maintained for the life of the grant or loan, unless such requirement is waived or modified by the Agency.
Consistent with Agency policies, construction planning and performing development requirements of 7 CFR part 1924, subpart A, will be used for grants.
Under the Guaranteed Loan program, lenders will be required to ensure that all project facilities are designed utilizing accepted architectural and engineering practices, conform to applicable Federal, state, and local codes and requirements, and meet the requirements of this regulation.
There are several laws that applicants and borrowers must comply with under this program. These are:
• Executive Order 11246, “Equal Employment Opportunity;”
• Americans with Disabilities Act of 1990;
• Title VI of the Civil Rights Act of 1964 (grants only);
• Section 504 of the Rehabilitation Act of 1973 (grants only);
• Equal Credit Opportunity Act (Title V of Pub. L. 90-321, as amended) (guaranteed loans only);
• 7 CFR part 1940, subpart G, which requires an environmental impact analysis; and
• Executive Order 12898, “Environmental Justice,” under which the Agency will conduct a Civil Rights Impact Analysis in regard to environmental justice.
The Agency is requiring the minimum amount of information that it needs to evaluate an applicant's or borrower's
In applying for grant or guaranteed loan funds under this program, the applicant will be required to submit an application; submit a series of forms, certifications, and agreements; perform a feasibility study for renewable energy systems projects of more than $100,000; and prepare technical requirements reports.
Separate applications must be submitted for renewable energy system and for energy efficiency improvement projects from applicants applying for both. Only one application per each type of project may be submitted. Applicants applying for a combined grant and guaranteed loan will submit a separate application for each grant and guaranteed loan, with at least one set of documentation. The separate applications must be submitted simultaneously.
Applications will consist of:
• A table of contents;
• A one page summary of the project;
• A description of applicant/borrower eligibility and project eligibility;
• A description of agricultural producer's/rural small business' business, farm, or ranch operation and ownership;
• Management information;
• Financial information including an explanation of financial need (grants only), balance sheets and income statements or equivalent, information to allow assessment of annual receipts (rural small businesses only), historical financial statements, pro forma balances sheets, and gross market value of agricultural products (agricultural producers only); and
• A Dun and Bradstreet (D&B) Data Universal Numbering System (DUNS) number (grants only).
For renewable energy systems, the applicant must also indicate whether the technology to be employed is commercially or pre-commercially available and is replicable, the information to support this position, and a description of the availability of materials, labor, and equipment for the facility. Also required is information on the demand for the product and/or service; who will buy the product and/or service, identification of the supply (past, present, and future) of the product and/or service; identification of competitors; and a description how the business will be able to sell enough of its product/service to be profitable given the trends in demand and supply.
The Agency will then evaluate applications to determine if the applicant or borrower is eligible and if the project is eligible to receive funds and to score each application to assist in determining those projects that are funded first.
Applicants must submit a series of forms, certifications, and agreements with each application. These forms, certifications, and agreements are necessary for the Agency to evaluate applications and to administer this program. Some of these are applicable to both funding programs. Applicants applying for a combined grant and guaranteed loan will be required to submit all applicable forms for both types of funding.
Most of the forms being used for this program have been used in other, similar programs. Rather than develop new forms, which would be very time consuming, the Agency is amending these existing forms. For example, Form 4279-4, “Lender's Agreement,” would be amended to note that Section III, Item A.2, is only applicable to the Business and Industry program.
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i. Form SF-424, “Application for Federal Assistance.”
ii. Form SF-424C, “Budget Information—Construction Programs.”
iii. Form SF-424D, “Assurances—Construction Programs.”
iv. AD-1049, “Certification Regarding Drug-Free Workplace Requirements (Grants).”
v. AD-1048, “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -Lower Tiered Covered Transactions.”
vi. A copy of a bank statement or a copy of the commitment letter from the funding source.
vii. Exhibit A-1 of RD Instruction 1940-Q, “Certification for Contracts, Grants and Loans,” if the grant exceeds $100,000 (or Exhibit A-2 of RD Instruction 1940-Q, “Statement for Loan Guarantees,” if the guaranteed loan exceeds $150,000).
viii. Form SF-LLL, “Disclosure of Lobbying Activities.”
ix. AD-1047, “Certification Regarding Debarment, Suspension, and Other Responsibility Matters—Primary Covered Transactions.”
x. Form RD 400-1, “Equal Opportunity Agreement.”
xi. Form RD 400-4, “Assurance Agreement.”
xii. Where applicable, a copy of a letter of intent to purchase power, a power purchase agreement, a copy of a letter of intent for an interconnection agreement, or an interconnection agreement will be required from your utility company or other purchaser for renewable energy systems.
xiii. Where applicable, intergovernmental consultation comments in accordance with Executive Order 12372.
xiv. Certification indicating whether or not there is a known relationship or association with an Agency employee.
xv. An environmental impact analysis prepared in accordance with 7 CFR part 1940, subpart G, using Form RD 1940-20, “Request for Environmental Information.”
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i. Form 4279-1, “Application for Loan Guarantee.”
ii. A personal credit report for the borrower, a proprietor (owner), and anyone owning 20 percent or more interest in the borrower's business from a credit reporting company acceptable to the Agency.
iii. Completed appraisals should be submitted when the application is filed. If the appraisal has not been completed when the application is filed, the applicant must submit an estimated appraisal. In all cases, a completed appraisal must be submitted prior to the loan being closed.
iv. Lender's complete comprehensive written analysis.
v. Commercial credit reports on the borrower and any parent, affiliate, and subsidiary firms.
vi. Current personal and corporate financial statements of any guarantors.
vii. A proposed Loan Agreement or a sample Loan Agreement with an attached list of the proposed Loan Agreement provisions.
viii. A certification by the lender that it has completed a comprehensive written analysis of the proposal, the borrower is eligible, the loan is for authorized purposes, and there is reasonable assurance of repayment ability based on the borrower's history, projections and equity, and the collateral to be obtained.
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• Biomass, bioenergy.
• Biomass, digesters.
• Geothermal, electric.
• Geothermal, direct use.
• Hydrogen.
• Solar, small.
• Solar, large.
• Wind, small.
• Wind, large.
• Energy efficiency improvements.
The purpose of these technical requirements reports is to ensure that the renewable energy system or energy efficiency improvement operates or performs as expected over its design life in a reliable and cost effective manner. To this end, the applicant must provide information on project design, procurement, startup, operation, and maintenance.
The technical requirements vary for each different system and project. In general, smaller projects will require less information than larger projects, projects using mature technologies will require less information than pre-commercial technologies or technologies with limited commercial operational history; projects using pre-engineered systems or kits will require less information than projects that require system design engineering; and systems or improvements using design-build project delivery methods where the supplier assumes all project delivery risks will require less information than those projects utilizing design-bid-construction methods where the risks of project delivery fall on the applicant or borrower. Small projects using pre-engineered kits or appliances utilizing a mature technology with significant commercial operational history will require the least information.
The type of information to be provided includes the qualifications of the project team, agreements and permits, resource assessment, preliminary design and engineering, project development schedules, economic/feasibility modeling, equipment procurement, equipment installation, operations and maintenance, and project decommissioning. Energy efficiency improvement projects of more than $100,000 would be required to conduct an energy audit. The specific inputs for each of the ten technologies are identified in the proposed rule. The Agency allows for the use of an abbreviated set of requirements for small projects using a pre-engineered kits or complete integrated appliances utilizing a mature technology.
Projects costing more than $100,000 will be required to employ the services of a professional engineer (PE). The applicant or borrower may be required to use the services of a PE for projects of $100,000 or less, depending on the level of engineering required for the specific project or if necessary to ensure public safety.
To facilitate the review of proposed projects, all technical information provided will be required to follow a specific format, which is set forth in § 4280.111(d). However, supporting information may be submitted in other formats as determined by the applicant. Although not required in the proposed rule, the Agency recommends that the narrative portion of the technical requirements portion of the application for small solar and small wind projects be less than 10 pages. For all proposed projects, the applicant will be required to submit the original technical requirements report plus one copy to the State Rural Development Office.
The Agency will evaluate each application and make a determination as to whether the applicant or borrower is eligible, whether the proposed project is eligible, and whether the proposed grant or guaranteed loan or combined funding request complies with all applicable statutes and regulations. The Agency will also evaluate the technical feasibility of each grant, while the lender will make this evaluation for guaranteed loans. The evaluation will be based on the information provided by the applicant and on other sources of information, such as recognized industry experts in the applicable technology field, as necessary.
If the Agency determines that either the applicant or borrower or the project is ineligible, the Agency will notify the applicant in writing of the decision, reasons therefore, and any appeal rights, and no further evaluation will take place.
If the Agency determines that the application is incomplete, the Agency will return it to the applicant to provide the applicant the opportunity to resubmit the application. The Agency will identify those parts of the application that are incomplete. Upon receipt of a complete application, the Agency will complete its evaluation of the application and forward a copy of the technical requirements to outside qualified industry experts for review.
The Agency will score each application in order to prioritize each proposed project. The evaluation criteria that the Agency will use to score renewable energy systems and energy efficiency improvement projects are discussed in Sections IV.A and IV.B, respectively. The rationale for the selection criteria and their point values is presented in Sections IV.C.1 and IV.C.2, respectively.
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i. The type of renewable energy systems to be purchased;
ii. The estimated quantity of energy to be generated by the renewable energy system;
iii. The expected environmental benefits of the renewable energy system;
iv. The extent to which the renewable energy system is replicable.
v. The amount of energy savings expected to be derived from the activity, as determined by an energy audit comparable to an energy audit conducted under section 9004;
vi. The estimated length of time it would take for the energy savings generated by the activity to equal the cost of the activity; and
vii. Other factors as appropriate.
The Agency has incorporated Items C.1.ii through vi into the evaluation criteria for renewable energy systems and Items C.1.v and vi into the evaluation criteria for energy efficiency improvements (Items C.1.i through iv are not applicable to energy efficiency improvements). The Agency did not use Item C.1.i, the type of renewable energy system, as an evaluation criteria because the rule specifies the types of renewable energy systems that are approvable and no reason was found to “favor” one technology over another.
The Agency identified up to four additional factors that were considered appropriate. These factors, the programs to which they are applicable, and the reasons for their selection, are:
• Matching funds, which is applicable to both renewable energy systems and energy efficiency improvements. One of the Agency's goals for this program is to fund as many projects as possible. To enable more projects to be funded, the Agency elected to include as a criterion the amount of funds being requested. Those projects requesting less assistance will be awarded more points than those projects requesting more assistance. As there are no matching funds associated with guaranteed loans, this criterion is applicable only to grants.
• Management, which is applicable to renewable energy systems only. One of the Agency's goals for this program is to fund projects that have a high likelihood of success. One key component to a successful project is the quality of the management team. Therefore, the Agency believes it appropriate to include management as an evaluation criterion for renewable energy projects. This criterion is applicable for grants and guaranteed loans.
• Small agricultural producers, which is applicable to renewable energy systems and energy efficiency improvements. The 2002 Act specifies the target market as rural small businesses and agricultural producers, but does not limit the size associated with agricultural producers. Another of the Agency's goals for this program is to help ensure additional income to small agricultural producers, thereby assisting in their economic sustainability. In order to help meet this goal, the Agency has elected to include as an evaluation criterion the size of the agricultural producer. This criterion is applicable to grants and guaranteed loans.
• Loan rate, which is only appropriate for guaranteed loans, because there are no loan rates associated with grants. The Agency is adopting loan rate as a criterion because it is consistent with Agency procedures under the B&I program and are applicable to this program.
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The criterion that the Agency believes should have the highest potential weight is cost effectiveness, because this criterion evaluates the overall return on investment for each project. Point values for this criterion range from 10 to 25.
After this criterion, the Agency believes the criterion for the amount of energy generated or saved is the second most important criterion because it reflects the basic goals of the program's projects—to create new renewable energy systems and to improve energy efficiency. Point values for this criterion range from 10 to 20 for energy replacement and 20 points for energy generation for renewable energy systems, and from 5 to 20 points for energy savings for energy improvement projects.
The remaining criteria all have point values of about 10 points, although some have the potential to be slightly higher (
The Agency will prepare a Letter of Conditions, which establishes conditions that must be understood and agreed to by the applicant before the Agency will obligate any funds. The applicant must sign the Letter of Intent to Meet Conditions, if they accept the conditions of the grant. The grantee must sign a Grant Agreement (Form RD 4280-2) and abide by all requirements contained in the Grant Agreement as well as other requirements specified.
Grants will be serviced in accordance with 7 CFR part 1951, subpart E and the Grant Agreement. The Agency is using 7 CFR part 1951, subpart E, for this program because it is the Agency's regulations for servicing Agency grant programs.
Under the proposed program, guaranteed loans will be processed and serviced in essentially the same manner as guaranteed loans are processed and serviced under the Agency's B&I program. The Agency determined that the requirements in the B&I program for processing and servicing guaranteed loans under the renewable energy systems and energy efficiency improvements program are applicable and therefore have essentially adopted the B&I requirements. Two exceptions to note are:
• Under the proposed program, the Agency is not utilizing the “Certified Lender” aspect of the B&I program because the Agency believes that there are few, if any, lenders who would pre-qualify as “certified” lenders for making guaranteed loans for renewable energy systems and energy efficiency improvements.
• Under the proposed program, the Agency is only allowing a single note system and is not incorporating the multi-note system from the B&I program. The Agency is doing this because the size of the loans associated with the renewable energy systems and energy efficiency improvements program are likely to be small enough that there is minimal benefit to allowing multi-notes and the program becomes simpler to implement without multi-notes.
The following paragraphs discuss the processing and servicing requirements of the guaranteed loan program.
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i. Processing applications;
ii. Developing and maintaining loan files. Both the lender and borrower must permit representatives of the Agency to inspect and make copies of any records of the lender or borrower pertaining to the loan;
iii. Obtaining valid evidence of debt and collateral. Complete, self, contained appraisals are required for loans of $600,000 or more. Complete summary appraisals are required for loans less than $600,000. Unconditional personal and corporate guarantees for those owning or having a beneficial interest greater than 20 percent of the borrower will be required where legally permissible;
iv. Supervising and monitoring project construction and ensuring all projects are designed according to accepted practices;
v. Distributing loan funds;
vi. Conducting credit evaluations. For each proposed project, lenders will be required to conduct a credit analysis in order to determine credit quality of the borrower. Elements of credit quality to be addressed include adequacy of equity, cash flow, collateral, history, management, and the current status of the industry for which credit is to be extended. In determining the adequacy of equity, the lender must ensure that, for loans over $600,000, evidence of cash equity injection in the project of not less than 25 percent of eligible project costs is demonstrated and that, for loans of $600,000 or less, evidence of cash equity injection in the project of not less than 15 percent of eligible project costs is demonstrated;
vii. Ensuring that borrowers furnish all required environmental information and reporting any environmental issues to the Agency; and
viii. Closing loans. When loan closing plans are established, the lender must notify the Agency in writing. At the same time, or immediately after loan closing, the lender must provide to the Agency the lender's certifications (as required by § 4280.146), an executed Form 4279-4, “Lender's Agreement,” an executed Form RD 1980-19, “Guaranteed Loan Closing Report,” and appropriate guarantee fee, copies of legal loan documents, and disbursement plan if working capital is a purpose of the project. Note that, if a valid Lender's Agreement already exists, the lender will not be required to execute a new Lender's Agreement with each loan guarantee.
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The Agency will not issue the Loan Note Guarantee until the lender certifies certain conditions have been met (
Any changes in borrower ownership or organization prior to the issuance of the Loan Note Guarantee must meet the eligibility requirements of the program and be approved by the Agency loan approval official.
Upon approval of a loan guarantee, the Agency will issue a Conditional Commitment, which contains the conditions under which a Loan Note Guarantee will be issued. If certain conditions cannot be met, the lender and/or borrower may propose alternate conditions and the Agency may negotiate with the lender and/or borrower regarding any proposed changes to the Conditional Commitment.
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Purchase by the Agency does not change, alter, or modify any of the lender's obligations to the Agency arising from the loan or guarantee nor does it waive any of the Agency's rights against the lender. The Agency has the right to set-off against the lender all rights inuring to the Agency as the holder of the instrument against the Agency's obligation to the lender under the guarantee.
Alternatively to the holder requesting repurchase, if the lender determines that repurchase of the guaranteed portion of the loan is necessary to adequately service the loan, the holder must sell the guaranteed portion of the loan to the lender for an amount equal to the unpaid principal and interest on such portion less the lender's servicing fee according to the requirements of the regulations and instruments.
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The lender will not be allowed to make additional loans to the borrower without first obtaining the prior written approval of the Agency, even though such loans will not be guaranteed.
ii.
iii.
For energy efficiency improvement projects, this report will be required beginning the first full calendar year following the year in which project construction was completed and continuing for 2 full years. This report will specify the actual amount of energy saved due to the energy efficiency improvements.
Where the Agency approves a combined funding request, the grant portion will be processed and serviced according to the procedures described in paragraph A for grants. The guaranteed loan portion will be processed and serviced according to the procedures described in paragraph B for guaranteed loans.
To support the development of this rule, a benefit-cost analysis was performed. In addition, an assessment of the potential impacts on small businesses was made. The following paragraphs summarize the benefit-cost analysis that was performed and the results. This summary is then followed by a brief discussion of the benefit-cost analysis as it applies to small businesses. Because this rule is not an economically significant rule under Executive Order 12866, the economic analysis conducted by USDA in support of this rule does not necessarily conform to OMB Circular A-4, Regulatory Analysis.
1.
i. The value of the energy produced or saved, including green tag values. “Green tag” refers to the positive environmental attributes of renewable energy compared to “dirtier” generation power sources. The green tag value refers to the additional amount an electricity service provider will pay to “green” their energy supply or to the additional amount a retail customer is willing to pay to purchase “green” power.
ii. The amount of carbon emissions reduced as the result of electricity generation being displaced or reduced.
The social costs examined are the costs of participating in the proposed program and the amount of USDA funds used in the program.
Other effects examined included:
i. The number of agricultural producers and rural small businesses that are served by the program.
ii. The number of jobs created.
iii. The amount of electricity generated or saved (energy cost savings).
iv. The amount of energy displaced (
2.
i. The total amount of program funding in FYs 2003 through 2007;
ii. The amount of program funding obligated for grants, guaranteed loans, and direct loans;
iii. The amount of program funding for renewable energy projects and for energy efficiency improvements;
iv. The subsidy rate;
v. The discount rate; and
vi. The useful life of projects.
3.
Table 1 summarizes the social benefits and costs of the proposed rule.
As seen in Table 1, the annual estimated social cost (in year 2000 dollars) for each of the five FYs ranges from $18 to $22.4 million. In return, the annual estimated social benefits (in year 2000 dollars) of the green tag values for each of the five FYs ranges from $1 million to $7 million, while carbon emission reductions range from 55,000 tons in FY 2003 up to 440,000 tons in the last three FYs.
In addition to the social benefits, the proposed program is also projected to provide other benefits, as noted earlier. These other benefits are summarized in Table 2 for each of the five FYs. Once the program is fully implemented, approximately 300 agricultural producers and rural small businesses are estimated to participate in the program. The projects that these participants would implement are estimated to create approximately 1,800 jobs per year, provide energy cost savings up to $131 million in FY 2007, and save approximately 3 million barrels of oil each year.
4.
i.
ii.
iii.
This program is targeted to agricultural producers and rural small businesses. Based on data compiled by the USDA Economic Research Service and the Small Business Administration, over 3 million entities would be eligible for this program. The vast majority of agricultural producers also fit the definition of small businesses. Excluding the small percentage of agricultural producers that do not qualify as small entities, the almost 3 million entities would qualify as small businesses under this program. Given this situation, the benefit-cost analysis discussed above can be considered as the relevant analysis for analyzing the impacts of the proposed program on small businesses.
In accordance with the Paperwork Reduction Act of 1995, Rural Development will seek OMB approval of the reporting and recordkeeping requirements contained in this proposed rule. Rural Development is committed to compliance with the Government Paperwork Elimination Act, which requires Government agencies, in general, to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.
The following estimates are based on the average over the first three years the program is in place.
The information requirements contained in this proposed rule require information from grant, guaranteed loan, and direct loan applicants and borrowers. The information is vital for Rural Development to make wise decisions regarding the eligibility of applicants and borrowers, establish selection priorities among competing applicants, ensure compliance with applicable Rural Development regulations, and effectively monitor the grantees and borrowers activities to protect the Government's financial interest and ensure that funds obtained from the Government are use appropriately. This collection of information is necessary in order to implement the grant, guaranteed loan, and direct loan program for Renewable Energy Systems and Energy Efficiency Improvements established under the 2002 Act.
Copies of this information collection can be obtained from Cheryl Thompson, Regulations and Paperwork Management Burden at (202) 692-0043.
Comments are invited on (1) whether the proposed collection of information is necessary for the proper performance of the functions of Rural Development, including whether the information will have practical utility; (2) the accuracy of the new Rural Development 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 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. Comments may be sent to: Cheryl Thompson, Regulations and Paperwork Management Branch, U.S. Department of Agriculture, Rural Development, STOP 0742, 1400 Independence Ave., SW., Washington, DC 20250. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
The Rural Development Grant, Guaranteed Loan, and Direct Loan Program is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. Rural Development will conduct intergovernmental consultation in the manner delineated in RD Instruction 1940-J, “Intergovernmental Review of Rural Development Programs and Activities,” and in the notice related to 7 CFR part 3015, subpart V.
The Regulatory Flexibility Act (RFA) requires Federal agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the Agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governments. The major purpose of the RFA is to keep paperwork and regulatory requirements from getting out of proportion to the scale of the entities being regulated, without compromising the objectives of the Act.
For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as: (1) A small business according to the Small Business Administration (SBA) size standards by NAICS code ranging from 500 to 1,000 employees; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field.
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-602), the undersigned has determined and certified by signature of this document that this proposed rule would not have a significant economic impact on a substantial number of small entities. This action impacts those who choose to participate in the grant, guaranteed loan, and direct loan program and requires only minimum information/paperwork to evaluate an application. Therefore, a regulatory flexibility analysis was not performed.
Although a regulatory flexibility analysis was not performed, the Agency conducted a benefit-cost analysis and an initial regulatory flexibility analysis (IRFA) that examines the impact on small entities. The benefit-cost analysis and the IRFA (referred to as the Unified Analysis) are available for review in the docket and the results are summarized below.
The program targets rural small businesses plus agricultural producers. The vast majority of these agricultural producers qualify as small businesses too. Based on data compiled by the USDA Economic Research Service and the SBA, there are approximately 3 million of the entities who would qualify under this program.
The benefit-cost analysis reflects a large net beneficial impact. The expenditure of slightly less than $100 million in nominal USDA funds over five years (approximately $20 million per year) from FY 2003 through FY 2007 represents a present value cost in constant year 2000 dollars of approximately $71 million. This sum in turn supports total program funding (USDA funds and private funds) of over $1 billion. The cumulative cash flow benefits through 2007 are $360 million in comparison to the $71 million cost. The cash flow benefits based upon life cycle analysis are $1.5 billion, again based upon this $71 million cost.
Given that almost the entire program is directed at small businesses, the burden analysis is a representative measure for small businesses of the reporting, recordkeeping, and other compliance costs. The burden analysis estimated an annual (three-year average) cost of $1.9 million for an estimated 388 applicants per year.
As noted above, the proposed rule is directed almost entirely at small businesses. Therefore, the benefit-cost analysis represents the results as it affects small businesses.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. In accordance with this rule: (1) All State and local laws and regulations that are in conflict with this proposed rule will be preempted, (2) no retroactive effect will be given to this rule, and (3) administrative proceedings in accordance with 7 CFR part 11 must be exhausted before bringing suit in court challenging action taken under this rule, unless those regulations specifically allow bringing suit at an earlier time.
This document has been reviewed in accordance with 7 CFR part 1940, subpart G. Rural Development has determined that this action does not constitute a major Federal action significantly affecting the quality of the
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, Rural Development must prepare a written statement, including a benefit-cost analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local or tribal governments, in the aggregate, or to the private sector of $100 million or more in any 1 year. When such a statement is needed for a rule, section 205 of UMRA generally requires Rural Development to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective, or least burdensome alternative that achieves the objectives of the rule.
This proposed rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
It has been determined under Executive Order 13132, Federalism, that this proposed rule does not have sufficient federalism implications to warrant the preparation of a Federalism assessment. The provisions contained in this proposed rule will not have a substantial direct effect on States or their political subdivisions or on the distribution of power and responsibilities among the various levels of government.
Under Executive Order 12866, this proposed rule has been determined to be “significant” and, therefore, has been reviewed by the Office of Management and Budget (OMB). The Order defines “significant” regulatory action as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety in 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.
Business and industry, Direct loan programs, Economic development, Energy, Energy efficiency improvements, Grant programs, Guaranteed loan programs, Renewable energy systems, Rural areas.
For the reasons stated in the preamble, title 7, chapter XLII of the Code of Federal Regulations is amended as follows:
1. Part 4280 is added to read as follows:
7 U.S.C. 8106.
This subpart contains a program of procedures and requirements for making grants and guaranteed loans, or a combination thereof, to agricultural producers and rural small businesses for the purchase of renewable energy systems and energy efficiency improvements in rural areas. This subpart also presents the process that will be used to provide funds for direct loans.
Sections 4280.103 through 4280.105 contain definitions, exception authority,
The following definitions are applicable to this subpart.
The Administrator may, in individual cases, make an exception to any requirement or provision of this subpart that is not inconsistent with any authorizing statute or applicable law if the Administrator determines that application of the requirement or provision would adversely affect the USDA's interest.
Only the grantee, borrower, lender, or holder can appeal an Agency decision made under this subpart. In cases where the Agency has denied or reduced the amount of final loss payment to the lender, the adverse decision may be appealed by the lender only. An adverse decision that only impacts the holder may be appealed by the holder only. A decision by a lender adverse to the interest of the borrower is not a decision by the Agency, whether or not concurred in by the Agency. Appeals will be handled in accordance with 7 CFR part 11. Any party adversely affected by an Agency decision under this subpart may request a determination of appealability from the Director, National Appeals Division, USDA, within 30 days of the adverse decision.
No conflict of interest or appearance of conflict of interest will be allowed. For purposes of this subpart, conflict of interest includes, but is not limited to, distribution or payment to an individual owner, partner, stockholder, or beneficiary of the applicant or borrower or a close relative of such an individual when such individual will retain any portion of the ownership of the applicant or borrower.
To receive a grant under this subpart, an applicant must meet each of the criteria, as applicable, as set forth in paragraphs (a) through (f) of this section.
(a) The applicant or borrower must be an agricultural producer or rural small business.
(b) Individuals must be citizens of the United States (U.S.) or reside in the U.S. after being legally admitted for permanent residence.
(c) Entities must be at least 51 percent owned, directly or indirectly, by individuals who are either citizens of the U.S. or reside in the U.S. after being legally admitted for permanent residence.
(d) If the applicant or borrower or an owner has an outstanding judgment obtained by the United States in a
(e) In the case of an applicant or borrower that is applying as a rural small business, the business headquarters must be in a rural area and the project to be funded also must be in a rural area.
(f) The applicant must have demonstrated financial need.
For a project to be eligible to receive a grant under this subpart, the proposed project must meet each of the criteria, as applicable, in paragraphs (a) through (f) of this section.
(a) The project must be for the purchase of a renewable energy system or to make energy efficiency improvements.
(b) The project must be for a pre-commercial or commercially available and replicable technology.
(c) The project must be technically feasible, as determined using the procedures specified in § 4280.112(c).
(d) The project must be located in a rural area.
(e) The applicant (for grants) or borrower (for guaranteed loans) must be the owner of the system and control the operation and maintenance of the proposed project. A qualified third-party operator may be used to manage the operation and/or maintenance of the proposed project.
(f) All projects financed under this subpart must be based on satisfactory sources of revenues in an amount sufficient to provide for the operation and maintenance of the system or project.
(a) The amount of grant funds that will be made available to an eligible project under this subpart will not exceed 25 percent of eligible project costs.
(1) The only eligible project costs are those costs associated with the items identified in paragraphs (a)(1)(i) through (ix) of this section, as long as the items are an integral and necessary part of the total project:
(i) Post-application purchase and installation of equipment, except agricultural tillage equipment and vehicles;
(ii) Post-application construction or project improvements, except residential;
(iii) Energy audits or assessments;
(iv) Permit fees;
(v) Professional service fees, except for application preparation;
(vi) Feasibility studies;
(vii) Business plans;
(viii) Retrofitting; and
(ix) Construction of a new facility only when the facility is used for the same purpose, is approximately the same size, and based on the energy audit will provide more energy savings than improving an existing facility. Only costs identified in the energy audit for energy efficiency projects are allowed.
(2) The applicant must provide at least 75 percent of eligible project costs to complete the project. Applicant in-kind and other Federal grant awards cannot be used to meet the matching fund requirement. However, the Agency will allow third-party, in-kind contributions to be used in meeting the matching fund requirement. Third-party, in-kind contributions will be limited to 10 percent of the matching fund requirement of the grantee. The Agency will advise if the third-party, in-kind contributions are acceptable in accordance with 7 CFR part 3015.
(b) The maximum amount of grant assistance to one individual or entity will not exceed $750,000.
(c) Applications for renewable energy systems must be for a minimum grant request of $2,500, but no more than $500,000.
(d) Applications for energy efficiency improvements must be for a minimum grant request of $2,500, but no more than $250,000.
The following requirements apply to all grant applications under this subpart.
(a)
(1)
(2)
(3)
(4)
(i) Business/farm/ranch operation.
(A) A description of the ownership, including a list of individuals and/or entities with ownership interest, names of any corporate parents, affiliates, and subsidiaries, as well as a description of the relationship, including products, between these entities.
(B) A description of the operation.
(ii) Management. The resume of key managers focusing on relevant business experience. If a third-party operator is used to monitor and manage the project, provide a discussion on the benefits and burdens of such monitoring and management as well as the qualifications of the third party.
(iii) Financial Information.
(A) Explanation of demonstrated financial need.
(B) For rural small businesses, a current balance sheet and income statement prepared in accordance with generally accepted accounting principles (GAAP) and dated within 90 days of the application. Agricultural producers should present financial information in the format that is generally required by commercial agriculture lenders. Financial information is required on the total operations of the agricultural producer/rural small business and its parent, subsidiary, or affiliates at other locations.
(C) Rural small businesses must provide sufficient information to determine total annual receipts of the business and any parent, subsidiary, or affiliates at other locations. Voluntarily providing tax returns is one means of satisfying this requirement. Information provided must be sufficient for the Agency to make a determination of total income and cost of goods sold by the business.
(D) If available, historical financial statements prepared in accordance with GAAP for the past 3 years, including income statements and balance sheets. If agricultural producers are unable to
(E) Pro forma balance sheet at startup of the agricultural producer's/rural small business' business that reflects the use of the loan proceeds or grant award; and 3 additional years, indicating the necessary start-up capital, operating capital, and short-term credit; and projected cash flow and income statements for 3 years supported by a list of assumptions showing the basis for the projections.
(F) For agricultural producers, identify the gross market value of your agricultural products for the calendar year preceding the year in which you submit your application.
(iv) Production information for renewable energy system projects.
(A) Provide a statement as to whether the technology to be employed by the facility is commercially or pre-commercially available and replicable. Provide information to support this position.
(B) Describe the availability of materials, labor, and equipment for the facility.
(v) Business market information for renewable energy system projects.
(A) Demand. Identify the demand (past, present, and future) for the product and/or service and who will buy the product and/or service.
(B) Supply. Identify the supply (past, present, and future) of the product and/or service and your competitors.
(C) Market niche. Given the trends in demand and supply, describe how the business will be able to sell enough of its product/service to be profitable.
(vi) A Dun and Bradstreet Universal Numbering System (DUNS) number.
(b)
(1) Form SF-424, “Application for Federal Assistance.”
(2) Form SF-424C, “Budget Information—Construction Programs.” Each cost classification category listed on the form must be filled out if it applies to your project. Any cost category item not listed on the form that applies to your project can be put under the miscellaneous category. Attach a separate sheet if you are using the miscellaneous category and list each miscellaneous cost by not allowable and allowable costs in the same format as on Form 424C, “Budget Information—Construction Programs.” All project costs must be categorized as either allowable or not allowable.
(3) Form SF-424D, “Assurances—Construction Programs.”
(4) AD-1049, “Certification Regarding Drug-Free Workplace Requirements.”
(5) AD-1048, “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion—Lower Tiered Covered Transactions.”
(6) A copy of a bank statement or a copy of the confirmed funding commitment from the funding source. Matching funds must be included on the Application for Federal Assistance (SF 424) and Budget Information—Construction Programs (SF 424C).
(7) Exhibit A-1 of RD Instruction 1940-Q, “Certification for Contracts, Grants and Loans,” required by Section 319 of Public Law 101-121 if the grant exceeds $100,000 or Exhibit A-2 of RD Instruction 1940-Q, “Statement for Loan Guarantees,” required by Section 319 of Public Law 101-121 if the guaranteed loan exceeds $150,000.
(8) If the applicant or borrower has made or agreed to make payment using funds other than Federal appropriated funds to influence or attempt to influence a decision in connection with the application, Form SF-LLL, “Disclosure of Lobbying Activities,” must be completed.
(9) AD-1047, “Certification Regarding Debarment, Suspension, and Other Responsibility Matters—Primary Covered Transactions.”
(10) Form RD 400-1, “Equal Opportunity Agreement.”
(11) Form RD 400-4, “Assurance Agreement.”
(12) If the project involves interconnection to an electric utility, a copy of a letter of intent to purchase power, a power purchase agreement, a copy of a letter of intent for an interconnection agreement, or an interconnection agreement will be required from your utility company or other purchaser for renewable energy systems.
(13) If applicable, intergovernmental consultation comments in accordance with Executive Order 12372.
(14) Applicants and borrowers must provide a certification indicating whether or not there is a known relationship or association with an Agency employee.
(15) Each applicant must prepare an environmental impact analysis as specified in § 4280.114(d).
(c)
(d)
(1)
(i)
(A) Discuss the proposed project delivery method. Such methods include a design, bid, build where a separate engineering firm may design the project and prepare a request for bids and the successful bidder constructs the project at the applicant's risk, and a design build method, often referred to as turn key, where the applicant establishes the specifications for the project and secures the services of a developer who will design and build the project at the developer's risk;
(B) Discuss the biomass system equipment manufacturers of major components being considered in terms of the length of time in business and the number of units installed at the capacity and scale being considered;
(C) Discuss the project manager, equipment supplier, system designer, project engineer, and construction contractor qualifications for engineering, designing, and installing biomass energy systems including any relevant certifications by recognized organizations or bodies. Provide a list of the same or similar projects designed, installed, or supplied and currently operating and with references if available; and
(D) Describe the system operator's qualifications and experience for servicing, operating, and maintaining biomass renewable energy equipment or projects. Provide a list of the same or similar projects designed, installed, or supplied and currently operating and with references if available.
(ii)
(A) Biomass systems must be installed in accordance with applicable local, State, and national codes and regulations. Identify zoning and code issues, and required permits and the schedule for meeting those requirements and securing those permits.
(B) Identify licenses where required and the schedule for obtaining those licenses.
(C) Identify land use agreements required for the project and the schedule for securing the agreements and the term of those agreements.
(D) Identify any permits or agreements required for solid, liquid, and gaseous emissions or effluents and the schedule for securing those permits and agreements.
(E) Identify available component warranties for the specific project location and size.
(F) Systems interconnected to the electric power system will need arrangements to interconnect with the utility. Identify utility system interconnection requirements, power purchase arrangements, or licenses where required and the schedule for meeting those requirements and obtaining those agreements. This is required even if the system is installed on the customer side of the utility meter. For systems planning to utilize a local net metering program, describe the applicable local net metering program.
(G) Identify all environmental issues, including environmental compliance issues, associated with the project.
(iii)
(iv)
(A) The application must include a concise but complete description of the biomass project including location of the project, resource characteristics, system specifications, electric power system interconnection, and monitoring equipment. Identify possible vendors and models of major system components. Describe the expected electric power, fuel production, or thermal energy production of the proposed system as rated and as expected in actual field conditions. For systems with a capacity more than 20 tons per day of biomass, address performance on a monthly and annual basis. For small projects such as a commercial biomass furnace or pelletizer of up to 5 tons daily capacity, proven, commercially available devices need not be addressed in detail. Describe the uses of or the market for electricity, heat, or fuel produced by the system. Discuss the impact of reduced or interrupted biomass availability on the system process.
(B) The application must include a description of the project site and address issues such as site access, foundations, backup equipment when applicable, and environmental concerns with emphasis on visibility, odor, noise, construction, and installation issues. Identify any unique construction and installation issues.
(C) Sites must be controlled by the agricultural producer or rural small business for the proposed project life or for the financing term of any associated federal loans or loan guarantees.
(v)
(vi)
(vii)
(viii)
(ix)
(A) Provide information regarding available system and component warranties and availability of spare parts;
(B) For systems having a biomass input capacity exceeding 10 tons of biomass per day,
(
(
(C) Provide and discuss the risk management plan for handling large, unanticipated failures or major components. Include in the discussion, costs and labor associated with operations and maintenance of system and plans for in-sourcing or out-sourcing.
(x)
(2)
(i)
(A) Discuss the proposed project delivery method. Such methods include a design, bid, build where a separate engineering firm may design the project and prepare a request for bids and the successful bidder constructs the project at the applicant's risk, and a design build method, often referred to as turn key, where the applicant establishes the specifications for the project and secures the services of a developer who will design and build the project at the developer's risk;
(B) Discuss the anaerobic digester system equipment manufacturers of major components being considered in terms of the length of time in business and the number of units installed at the capacity and scale being considered;
(C) Discuss the project manager, equipment supplier, system designer, project engineer, and construction contractor qualifications for engineering, designing, and installing anaerobic digester systems including any relevant certifications by recognized organizations or bodies. Provide a list of the same or similar projects designed, installed, or supplied and currently operating consistent with the substrate material and with references if available; and
(D) For regional or centralized digester plants, describe the system operator's qualifications and experience for servicing, operating, and maintaining similar projects. Farm scale systems may not require operator experience as the developer is typically required to provide operational training during system startup and shakedown. Provide a list of the same or similar projects designed, installed, or supplied and currently operating consistent with the substrate material and with references if available.
(ii)
(A) Anaerobic digester systems must be installed in accordance with applicable local, State, and national codes and regulations. Anaerobic digesters must also be designed and constructed in accordance with USDA anaerobic digester standards. Identify zoning and code issues, and required permits and the schedule for meeting those requirements and securing those permits.
(B) Identify licenses where required and the schedule for obtaining those licenses.
(C) For regional or centralized digester plants, identify feedstock access agreements required for the project and the schedule for securing those agreements and the term of those agreements.
(D) Identify any permits or agreements required for transport and ultimate waste disposal and the schedule for securing those agreements and permits.
(E) Identify available component warranties for the specific project location and size.
(F) Systems interconnected to the electric power system will need arrangements to interconnect with the
(G) Identify all environmental issues, including environmental compliance issues, associated with the project.
(iii)
(iv)
(A) The application must include a concise but complete description of the anaerobic digester project including location of the project, farm description, feedstock characteristics, a step-by-step flowchart of unit operations, electric power system interconnection equipment, and any required monitoring equipment. Identify possible vendors and models of major system components. Provide the expected system energy production, heat balances, material balances as part of the unit operations flowchart.
(B) The application must include a description of the project site and address issues such as site access, foundations, backup equipment when applicable, and environmental concerns with emphasis on visibility, odor, noise, construction and installation issues. Identify any unique construction and installation issues.
(C) Sites must be controlled by the agricultural producer or rural small business for the proposed project life or for the financing term of any associated federal loans or loan guarantees.
(v)
(vi)
(vii)
(viii)
(ix)
(A) Ensure that systems must have at least a 3-year warranty for equipment and a 10-year warranty on design. Provide information regarding system warranties and availability of spare parts;
(B) Describe the routine operations and maintenance requirements of the proposed project, including maintenance for the digester, the gas handling equipment, and the gas use systems. Describe any maintenance requirements for system monitoring and control equipment;
(C) Provide information that supports expected design life of the system and the timing of major component replacement or rebuilds;
(D) Provide and discuss the risk management plan for handling large, unanticipated failures of major components. Include in the discussion, costs and labor associated with operations and maintenance of system and plans for insourcing or outsourcing; and
(E) Describe opportunities for technology transfer for long-term project operations and maintenance by a local entity or owner/operator.
(x)
(3)
(i)
(A) Discuss the proposed project delivery method. Such methods include a design, bid, build where a separate engineering firm may design the project and prepare a request for bids and the successful bidder constructs the project at the applicant's risk, and a design build method, often referred to as turn key, where the applicant establishes the specifications for the project and secures the services of a developer who will design and build the project at the developer's risk;
(B) Discuss the geothermal plant equipment manufacturers of major components being considered in terms of the length of time in business and the number of units installed at the capacity and scale being considered;
(C) Discuss the project manager, equipment supplier, system designer, project engineer, and construction contractor qualifications for engineering, designing, and installing geothermal electric generation systems including any relevant certifications by recognized organizations or bodies. Provide a list of the same or similar projects designed, installed, or supplied and currently operating and with references if available; and
(D) Describe system operator's qualifications and experience for servicing, operating, and maintaining electric generating geothermal projects. Provide a list of the same or similar projects designed, installed, or supplied and currently operating and with references if available.
(ii)
(A) Electric generating geothermal systems must be installed in accordance with applicable local, State, and national codes and regulations. Identify zoning and code issues, and required permits and the schedule for meeting those requirements and securing those permits.
(B) Identify any permits or agreements required for well construction and for disposal or re-injection of cooled geothermal waters and the schedule for securing those agreements and permits.
(C) Identify land use or access to the resource agreements required for the project and the schedule for securing the agreements and the term of those agreements.
(D) Identify available component warranties for the specific project location and size.
(E) Systems interconnected to the electric power system will need arrangements to interconnect with the utility. Identify utility system interconnection requirements, power purchase arrangements, or licenses where required and the schedule for meeting those requirements and obtaining those agreements.
(F) Identify all environmental issues, including environmental compliance issues, associated with the project.
(iii)
(iv)
(A) The application must include a concise but complete description of the geothermal project including location of the project, resource characteristics, thermal system specifications, electric power system interconnection equipment and project monitoring equipment. Identify possible vendors and models of major system components. Provide the expected system energy production on a monthly and annual basis.
(B) The application must include a description of the project site and address issues such as site access, proximity to the electrical grid, environmental concerns with emphasis on visibility, noise, construction, and installation issues. Identify any unique construction and installation issues.
(C) Sites must be controlled by the agricultural producer or rural small business for the proposed project life or for the financing term of any associated federal loans or loan guarantees.
(v)
(vi)
(vii)
(viii)
(ix)
(A) Ensure that systems must have at least a 3-year warranty for equipment. Provide information regarding turbine warranties and availability of spare parts;
(B) Describe the routine operations and maintenance requirements of the proposed project, including maintenance for the mechanical and electrical systems and system monitoring and control requirements;
(C) Provide information that supports expected design life of the system and timing of major component replacement or rebuilds;
(D) Provide and discuss the risk management plan for handling large, unanticipated failures of major components such as the turbine. Include in the discussion, costs and labor associated with operations and maintenance of system and plans for insourcing or outsourcing; and
(E) Describe opportunities for technology transfer for long term project operations and maintenance by a local entity or owner/operator.
(x)
(4)
(i)
(A) Discuss the proposed project delivery method. Such method include a design, bid, build where a separate engineering firm may design the project and prepare a request for bids and the successful bidder constructs the project at the applicant's risk, and a design build method, often referred to as turn key, where the applicant establishes the specifications for the project and secures the services of a developer who will design and build the project at the developer's risk;
(B) Discuss the geothermal system equipment manufacturers of major components being considered in terms of the length of time in business and the number of units installed at the capacity and scale being considered;
(C) Discuss the project manager, equipment supplier, system designer, project engineer, and construction contractor qualifications for engineering, designing, and installing direct use geothermal systems including any relevant certifications by recognized organizations or bodies. Provide a list of the same or similar projects designed, installed, or supplied and currently operating and with references if available; and
(D) Describe system operator's qualifications and experience for servicing, operating, and maintaining direct use generating geothermal projects. Provide a list of the same or similar projects designed, installed, or supplied and currently operating and with references if available.
(ii) Agreements and permits. The applicant must identify all necessary agreements and permits required for the project and the status and schedule for securing those agreements and permits, including the items specified in paragraphs (d)(4)(ii)(A) through (F) of this section.
(A) Direct use geothermal systems must be installed in accordance with applicable local, State, and national codes and regulations. Identify zoning and code issues, and required permits and the schedule for meeting those requirements and securing those permits.
(B) Identify licenses where required and the schedule for obtaining those licenses.
(C) Identify land use or access to the resource agreements required for the project and the schedule for securing the agreements and the term of those agreements.
(D) Identify any permits or agreements required for well construction and for disposal or re-injection of cooled geothermal waters and the schedule for securing those permits and agreements.
(E) Identify available component warranties for the specific project location and size.
(F) Identify all environmental issues, including environmental compliance issues, associated with the project.
(iii)
(iv)
(A) The application must include a concise but complete description of the geothermal project including location of the project, resource characteristics, thermal system specifications, and monitoring equipment. Identify possible vendors and models of major system components. Provide the expected system energy production on a monthly and annual basis.
(B) The application must include a description of the project site and address issues such as, site access, thermal backup equipment, environmental concerns with emphasis on visibility, noise, construction, and installation issues. Identify any unique construction and installation issues.
(C) Sites must be controlled by the agricultural producer or rural small business for the proposed project life or for the financing term of any associated federal loans or loan guarantees.
(v)
(vi)
(vii)
(viii)
(ix)
(A) Ensure that systems must have at least a 3-year warranty for equipment. Provide information regarding system warranties and availability of spare parts;
(B) Describe the routine operations and maintenance requirements of the proposed project, including maintenance for the mechanical and electrical systems and system monitoring and control requirements;
(C) Provide information that supports expected design life of the system and timing of major component replacement or rebuilds;
(D) Provide and discuss the risk management plan for handling large, unanticipated failures of major components. Include in the discussion, costs and labor associated with operations and maintenance of system and plans for insourcing or outsourcing; and
(E) Describe opportunities for technology transfer for long term project operations and maintenance by a local entity or owner/operator.
(x)
(5)
(i)
(A) Discuss the proposed project delivery method. Such methods include a design, bid, build where a separate engineering firm may design the project and prepare a request for bids and the successful bidder constructs the project at the applicant's risk, and a design build method, often referred to as turn key, where the applicant establishes the specifications for the project and secures the services of a developer who will design and build the project at the developer's risk;
(B) Discuss the hydrogen system equipment manufacturers of major components for the hydrogen system being considered in terms of the length of time in the business and the number of units installed at the capacity and scale being considered;
(C) Discuss the project manager, equipment supplier, system designer, project engineer, and construction contractor qualifications for engineering, designing, and installing hydrogen systems including any relevant certifications by recognized organizations or bodies. Provide a list of the same or similar projects designed, installed, or supplied and currently operating and with references if available; and
(D) Describe the system operator's qualifications and experience for servicing, operating, and maintaining hydrogen system equipment or projects. Provide a list of the same or similar projects designed, installed, or supplied and currently operating and with references if available.
(ii)
(A) Hydrogen systems must be installed in accordance with applicable local, State, and national codes and regulations. Identify zoning and building code issues, and required permits and the schedule for meeting those requirements and securing those permits.
(B) Identify licenses where required and the schedule for obtaining those licenses.
(C) Identify land use agreements required for the project and the schedule for securing the agreements and the term of those agreements.
(D) Identify any permits or agreements required for solid, liquid, and gaseous emissions or effluents and the schedule for securing those permits and agreements.
(E) Identify available component warranties for the specific project location and size.
(F) Systems interconnected to the electric power system will need arrangements to interconnect with the utility. Identify utility system interconnection requirements, power purchase arrangements, or licenses where required and the schedule for meeting those requirements and obtaining those agreements. This is required even if the system is installed on the customer side of the utility meter. For systems planning to utilize a local net metering program, provide a description of the applicable local net metering program.
(G) Identify all environmental issues, including environmental compliance issues, associated with the project.
(iii)
(iv)
(A) The application must include a concise but complete description of the hydrogen project including location of the project, resource characteristics, system specifications, electric power system interconnection equipment, and monitoring equipment. Identify possible vendors and models of major system components. Describe the expected electric power, fuel production, or thermal energy production of the proposed system. Address performance on a monthly and annual basis. Describe the uses of or the market for electricity, heat, or fuel produced by the system. Discuss the impact of reduced or interrupted resource availability on the system process.
(B) The application must include a description of the project site and address issues such as site access, foundations, backup equipment when applicable, and any environmental and safety concerns. Identify any unique construction and installation issues.
(C) Sites must be controlled by the agricultural producer or rural small business for the proposed project life or for the financing term of any associated federal loans or loan guarantees.
(v)
(vi)
(vii)
(viii)
(ix)
(A) Provide information regarding system warranties and availability of spare parts;
(B) Describe the routine operations and maintenance requirements of the proposed project, including maintenance of the reformer, electrolyzer, or fuel cell as appropriate, and other mechanical, piping, and electrical systems and system monitoring and control requirements;
(C) Provide information that supports expected design life of the system and timing of major component replacement or rebuilds;
(D) Provide and discuss the risk management plan for handling large, unanticipated failures of major components. Include in the discussion, costs and labor associated with operations and maintenance of system and plans for in or outsourcing; and
(E) Describe opportunities for technology transfer for long term project operations and maintenance by a local entity or owner/operator.
(x)
(6)
(i)
(A) Discuss the qualifications of the suppliers of major components being considered;
(B) Describe the knowledge, skills, and abilities needed to service, operate, and maintain the system for the proposed application; and
(C) Discuss the project manager, system designer, and system installer qualifications for engineering, designing, and installing small solar systems including any relevant certifications by recognized organizations or bodies. Provide a list of the same or similar systems designed or installed by the design and installation team and currently operating and with references if available.
(ii)
(A) Small solar systems must be installed in accordance with local, State, and national building and electrical codes and regulations. Identify zoning, building and electrical code issues, and required permits and the schedule for meeting those requirements and securing those permits.
(B) Identify available component warranties for the specific project location and size.
(C) Small solar electric systems interconnected to the electric power system will need arrangements to interconnect with the utility. Identify utility system interconnection requirements, power purchase arrangements, or licenses where required and the schedule for meeting those requirements and obtaining those agreements. This is required even if the system is installed on the customer side of the utility meter. For systems planning to utilize a local net metering program, describe the applicable local net metering program.
(D) Identify all environmental issues, including environmental compliance issues, associated with the project.
(iii)
(iv)
(A) The application must include a concise but complete description of the small solar system including location of the project and proposed equipment specifications. Identify possible vendors and models of major system components. Provide the expected system energy production based on available solar resource data on a monthly (when possible) and annual basis and how the energy produced by the system will be used.
(B) The application must include a description of the project site and address issues such as solar access, orientation, proximity to the load or the electrical grid, environmental concerns, unique safety concerns, construction, and installation issues, and whether special circumstances exist.
(C) Sites and application load must be controlled by the agricultural producer or rural small business for the proposed project life or for the financing term of any associated federal loans or loan guarantees.
(v)
(vi)
(vii)
(viii)
(ix)
(A) Ensure that systems must have at least a 5-year warranty for equipment. Provide information regarding system warranty and availability of spare parts;
(B) Describe the routine operations and maintenance requirements of the proposed system, including maintenance schedules for the mechanical and electrical and software systems;
(C) For owner maintained portions of the system, describe any unique knowledge, skills, or abilities needed for service operations or maintenance; and
(D) Provide information regarding expected system design life and timing of major component replacement or rebuilds. Include in the discussion, costs and labor associated with operations and maintenance of system and plans for in or outsourcing.
(x)
(7)
(i)
(A) Discuss the proposed project delivery method. Such methods include a design, bid, build where a separate engineering firm may design the project and prepare a request for bids and the successful bidder constructs the project at the applicant's risk, and a design build method, often referred to as turn key, where the applicant establishes the specifications for the project and secures the services of a developer who will design and build the project at the developer's risk;
(B) Discuss the qualifications of the suppliers of major components being considered;
(C) Discuss the project manager, general contractor, system engineer, and system installer qualifications for engineering, designing, and installing large solar systems including any relevant certifications by recognized organizations or bodies. Provide a list of the same or similar systems designed or installed by the design, engineering, and installation team and currently operating and with references if available; and
(D) Describe the system operator's qualifications and experience for servicing, operating, and maintaining the system for the proposed application. Provide a list of the same or similar systems designed or installed by the design, engineering, and installation team and currently operating and with references if available.
(ii)
(A) Large solar systems must be installed in accordance with local, State, and national building and electrical codes and regulations. Identify zoning, building and electrical code issues, and required permits and the schedule for meeting those requirements and securing those permits.
(B) Identify available component warranties for the specific project location and size.
(C) Large solar electric systems interconnected to the electric power system will need arrangements to interconnect with the utility. Identify utility system interconnection requirements, power purchase arrangements, or licenses where required and the schedule for meeting those requirements and obtaining those agreements. This is required even if the system is installed on the customer side of the utility meter. For systems planning to utilize a local net metering program, describe the applicable local net metering program.
(D) Identify all environmental issues, including environmental compliance issues, associated with the project.
(iii)
(iv)
(A) For large solar electric systems, the engineering must be comprehensive, including solar collector design and selection, support structure design and selection, power conditioning design and selection, surface or submersible water pumps and energy storage requirements as applicable, and selection of cabling, disconnects and interconnection equipment. A complete set of engineering drawings, stamped by a professional engineer must be provided.
(B) For large solar thermal systems, the engineering must be comprehensive, including solar collector design and selection, support structure design and selection, pump and piping design and selection, and energy storage design and selection. Provide a complete set of engineering drawings, stamped by a professional engineer.
(C) For either type of system, provide a concise but complete description of the large solar system including location of the project and proposed equipment and system specifications. Identify possible vendors and models of major system components. Provide the expected system energy production based on available solar resource data on a monthly (when possible) and annual basis and how the energy produced by the system will be used.
(D) For either type of system, provide a description of the project site and address issues such as, solar access, orientation, proximity to the load or the electrical grid, environmental concerns, unique safety concerns, construction, and installation issues and whether special circumstances exist.
(E) Sites must be controlled by the agricultural producer or rural small business for the proposed project life or for the financing term of any associated federal loans or loan guarantees.
(v)
(vi)
(vii)
(viii)
(ix)
(A) Ensure that systems must have at least a 5-year warranty for equipment. Provide information regarding system warranty and availability of spare parts;
(B) Describe the routine operations and maintenance requirements of the proposed system, including maintenance schedules for the mechanical and electrical and software systems;
(C) For owner maintained portions of the system, describe any unique knowledge, skills, or abilities needed for service operations or maintenance; and
(D) Provide information regarding expected system design life and timing of major component replacement or rebuilds. Include in the discussion, costs and labor associated with operations and maintenance of system and plans for insourcing or outsourcing.
(x)
(8)
(i)
(A) Discuss the small wind turbine manufacturers and other equipment suppliers of major components being considered in terms of the length of time in business and the number of units installed at the capacity and scale being considered;
(B) Describe the knowledge, skills, and abilities needed to service, operate, and maintain the system for the proposed application; and
(C) Discuss the project manager, system designer, and system installer qualifications for engineering, designing, and installing small wind systems including any relevant certifications by recognized organizations or bodies. Provide a list of the same or similar systems designed, installed, or supplied and currently operating and with references if available.
(ii)
(A) Small wind systems must be installed in accordance with applicable local, State, and national building and electrical codes and regulations. Identify zoning, building and electrical code issues, and required permits and the schedule for meeting those requirements and securing those permits.
(B) Identify available component warranties for the specific project location and size.
(C) Small wind systems interconnected to the electric power system will need arrangements to interconnect with the utility. Identify utility system interconnection requirements, power purchase arrangements, or licenses where required and the schedule for meeting those requirements and obtaining those agreements. This is required even if the system is installed on the customer side of the utility meter. For systems planning to utilize a local net metering program, describe the applicable local net metering program.
(D) Identify all environmental issues, including environmental compliance issues, associated with the project.
(iii)
(iv)
(A) The application must include a concise but complete description of the small wind system including location of the project, proposed turbine specifications, tower height and type of tower, type of energy storage and location of storage if applicable, proposed inverter manufacturer and model, electric power system interconnection equipment, and application load and load interconnection equipment as applicable. Identify possible vendors and models of major system components. Provide the expected system energy production based on available wind resource data on monthly (when possible) and annual basis and how the energy produced by the system will be used.
(B) The application must include a description of the project site and address issues such as access to the wind resource, proximity to the electrical gird or application load, environmental concerns with emphasis on visibility, noise, and avian impacts, construction, and installation issues and whether special circumstances such as proximity to airports exist. Provide a 360-degree panoramic photograph of the proposed site including indication of prevailing winds when possible.
(C) Sites and application loads must be controlled by the agricultural producer or rural small business for the proposed project life or for the financing term of any associated federal loans or loan guarantees.
(v)
(vi)
(vii)
(viii)
(ix)
(A) Ensure that systems must have at least a 5-year warranty for equipment and a commitment from the supplier to have spare parts available. Provide information regarding system warranty and availability of spare parts;
(B) Describe the routine operations and maintenance requirements of the proposed system, including maintenance schedules for the mechanical and electrical and software systems;
(C) Provide historical or engineering information that supports expected design life of the system and timing of major component replacement or rebuilds. Include in the discussion, costs and labor associated with operations and maintenance of system and plans for in or outsourcing; and
(D) For owner maintained portions of the system, describe any unique
(x)
(9)
(i)
(A) Discuss the proposed project delivery method. Such methods include a design, bid, build where a separate engineering firm may design the project and prepare a request for bids and the successful bidder constructs the project at the applicant's risk, and a design build method, often referred to as turn key, where the applicant establishes the specifications for the project and secures the services of a developer who will design and build the project at the developers risk;
(B) Discuss the large wind turbine manufacturers and other equipment suppliers of major components being considered in terms of the length of time in business and the number of units installed at the capacity and scale being considered;
(C) Discuss the project manager, equipment supplier, project engineer, and construction contractor qualifications for engineering, designing, and installing large wind systems including any relevant certifications by recognized organizations or bodies. Provide a list of the same or similar projects designed, installed, or supplied and currently operating and with references if available;
(D) Discuss the qualifications of the meteorologist, including references; and
(E) Describe system operator's qualifications and experience for servicing, operating, and maintaining the system for the proposed application. Provide a list of the same or similar projects designed, installed, or supplied and currently operating and with references if available.
(ii)
(A) Large wind systems must be installed in accordance with local, State, and national building and electrical codes and regulations. Identify zoning, building and electrical code issues, and required permits and the schedule for meeting those requirements and securing those permits.
(B) Identify land use agreements required for the project and the schedule for securing the agreements and the term of those agreements.
(C) Identify available component warranties for the specific project location and size.
(D) Large wind systems interconnected to the electric power system will need arrangements to interconnect with the utility. Large wind systems interconnected to the electric power system will need arrangements to interconnect with the utility. Identify utility system interconnection requirements, power purchase arrangements, or licenses where required and the schedule for meeting those requirements and obtaining those agreements.
(E) Identify all environmental issues, including environmental compliance issues, associated with the project.
(iii)
(iv)
(A) The application must include a concise but complete description of the large wind project including location of the project, proposed turbine specifications, tower height and type of tower, the collection grid, interconnection equipment, and monitoring equipment. Identify possible vendors and models of major system components. Provide the expected system energy production based on available wind resource data on monthly and annual bases. For wind projects larger than 500kW in size, provide the expected system energy production over the life of the project including a discussion on inter-annual variation using a comparison of the on-site monitoring data with long-term meteorological data from a nearby monitored site.
(B) The application must include a description of the project site and address issues such as site access, proximity to the electrical grid or application load, environmental concerns with emphasis on visibility, noise, and avian impacts, construction, and installation issues and whether special circumstances such as proximity to airports exist.
(C) Sites must be controlled by the agricultural producer or rural small business for the proposed project life or
(v)
(vi)
(vii)
(viii)
(ix)
(A) Ensure that systems must have at least a 3-year warranty for equipment. Provide information regarding turbine warranties and availability of spare parts;
(B) Describe the routine operations and maintenance requirements of the proposed project, including maintenance schedules for the mechanical and electrical systems and system monitoring and control requirements;
(C) Provide information that supports expected design life of the system and timing of major component replacement or rebuilds;
(D) Provide and discuss the risk management plan for handling large, unanticipated failures of major components such as the turbine gearbox or rotor. Include in the discussion, costs and labor associated with operations and maintenance of system and plans for insourcing or outsourcing;
(E) Describe opportunities for technology transfer for long term project operations and maintenance by a local entity or owner/operator; and
(F) For owner maintained portions of the system, describe any unique knowledge, skills, or abilities needed for service operations or maintenance.
(x)
(10)
(i)
(A) Discuss the qualifications of the various project team members including any relevant certifications by recognized organizations or bodies;
(B) Describe qualifications or experience of the team as related to installation, service, operation and maintenance of the project;
(C) Provide a list of the same or similarly engineered projects designed, installed, or supplied by the team or by team members and currently operating. Provide references if available; and
(D) Discuss the manufacturers of major energy efficiency equipment being considered including length of time in business.
(ii)
(A) Energy efficiency improvements must be installed in accordance with local, State, and national building and electrical codes and regulations. Identify building code, electrical code, and zoning issues and required permits, and the schedule for meeting those requirements and securing those permits.
(B) Identify available component warranties for the specific project location and size.
(C) Identify all environmental issues, including environmental compliance issues, associated with the project.
(iii)
(A) The application must include information on baseline energy usage (preferably including energy bills for at least one year), expected energy savings based on manufacturers specifications
(B) For energy efficiency improvement projects in excess of $100,000, an energy audit is required. An energy audit is a written report by an independent, qualified entity that documents current energy usage, recommended potential improvements and their costs, energy savings from these improvements, dollars saved per year, and simple payback period in years (total costs divided by annual dollars of energy savings). The methodology of the energy audit must meet professional and industry standards. The energy audit must cover the following:
(
(
(
(
(
(
(
(
(
(
(
(
(iv)
(A) Energy efficiency improvement projects in excess of $100,000 must be engineered by a qualified entity. Systems must be engineered as a complete, integrated system with matched components.
(B) For all energy efficiency improvement projects, identify and itemize major energy efficiency improvements including associated project costs. Specifically delineate which costs of the project are directly associated with energy efficiency improvements. Describe the components, materials or systems to be installed and how they improve the energy efficiency of the process or facility being modified. Discuss passive improvements that reduce energy loads, such as improving the thermal efficiency of a storage facility, and active improvements that directly reduce energy consumption, such as replacing existing energy consuming equipment with high efficiency equipment, as separate topics. Discuss any anticipated synergy between active and passive improvements or other energy systems. Include in the discussion any change in on-site effluents, pollutants, or other by-products.
(C) Identify possible suppliers and model of major pieces of equipment.
(v)
(vi)
(vii)
(viii)
(A) Provide information regarding component warranties and the availability of spare parts;
(B) Describe the routine operations and maintenance requirements of the proposed project, including maintenance schedules for the mechanical and electrical systems and system monitoring and control requirements;
(C) Provide information that supports expected design life of the system and timing of major component replacement or rebuilds;
(D) Provide and discuss the risk management plan for handling large, unanticipated failures of major components. Include in the discussion, costs and labor associated with operations and maintenance of system and plans for in or outsourcing; and
(E) For owner maintained portions of the system, describe any unique knowledge, skills, or abilities needed for service operations or maintenance.
(ix)
(a)
(b)
(c)
(d)
(1)
(i)
(A)
(B)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(2)
(i)
(ii)
(iii)
(iv)
Insurance is required to protect the interest of the recipient of funds under this subpart and the Agency. The coverage must be maintained for the life of the grant unless this requirement is waived or modified by the Agency in writing.
(a) Worker compensation insurance is required in accordance with State law.
(b) National flood insurance is required in accordance with 7 CFR part 1806, subpart B (RD Instructions 426.2).
(c) Business interruption insurance will be required.
(a)
(b)
(c)
(d)
(e)
The requirements of 7 CFR part 1924, except as identified in paragraph (a) of this section, apply for construction of renewable energy systems and energy efficiency improvement projects as applicable.
(a) The following sections and paragraphs either do not apply to this subpart or are modified for the purposes of this subpart as described:
(1) Under § 1924.4,
(i) For the purposes of this subpart, “County Supervisor,” “Assistant County Supervisor,” “District Director,” and “Assistant District Director” means the Agency. Wherever those terms are used in 7 CFR part 1924, subpart A, read “the Agency.”
(ii) The definition for “manufactured housing” does not apply; and
(iii) The definition for “modular/panelized housing” does not apply;
(2) § 1924.5(c) does not apply;
(3) § 1924.5(d)(1)(i), (ii), and (vi) do not apply;
(4) § 1924.5(d)(2) does not apply;
(5) § 1924.5(d)(4)(i) and (iv) do not apply;
(6) § 1924.5(f)(1)(i), (ii), (iii)(A), (iii)(B), (iii)(D), and (iii)(F) do not apply;
(7) § 1924.5(f)(2) does not apply;
(8) § 1924.5(i) does not apply;
(9) § 1924.6(a)(1), (2), and (3) do not apply;
(10) § 1924.6(b) does not apply;
(11) § 1924.6(c) does not apply;
(12) § 1924.6(d) does not apply;
(13) § 1924.8 does not apply;
(14) § 1924.10(c)(1) does not apply;
(15) § 1924.12 does not apply;
(16) § 1924.13(c) does not apply;
(17) § 1924.13(e)(1) does not apply; and
(18) § 1924, Exhibits A through E and I through M do not apply.
(b) Recipients of grants under this subpart are not authorized to construct the facility, project, or improvement in total, or in part, or utilize their own personnel and/or equipment.
(a) Letter of Conditions, which is prepared by the Agency, establishes conditions that must be understood and agreed to by the applicant before any obligation of funds can occur. The applicant must sign Letter of Intent to Meet Conditions and Form 1940-1, “Request for Obligation of Funds,” if they accept the conditions of the grant. These forms will be enclosed with the Letter of Conditions. The grant will be obligated when the Agency receives an executed Letter of Intent and Request for Obligation of Funds from the applicant agreeing to all provisions in the Letter of Conditions.
(b) The grantee must sign and abide by all requirements contained in Form 4280-2, “Grant Agreement,” and this subpart.
Grants will be serviced in accordance with 7 CFR part 1951, subpart E and the Grant Agreement.
To receive a guaranteed loan under this subpart, a borrower must meet each of the criteria, as applicable, identified in § 4280.107(a) through (e).
For a project to be eligible to receive a guaranteed loan under this subpart, the project must meet each of the criteria, as applicable, in § 4280.108.
(a) The amount of guaranteed loan funds that will be made available to an eligible project under this subpart will not exceed 50 percent of eligible project costs. Eligible project costs are only those costs associated with the items listed in paragraphs (a)(1) through (11) of this section, as long as the items are an integral and necessary part of the total project.
(1) Post-application purchase and installation of equipment, except agricultural tillage equipment and vehicles;
(2) Post-application construction or project improvements, except residential;
(3) Energy audits or assessments;
(4) Permit fees;
(5) Professional service fees, except for application preparation;
(6) Feasibility studies;
(7) Business plans;
(8) Retrofitting;
(9) Construction of a new facility only when the facility is used for the same purpose, is approximately the same size, and, based on the energy audit, will provide more energy savings than
(10) Working capital; and
(11) Land acquisition.
(b) The minimum amount of a guaranteed loan made to a borrower is $2,500. The maximum amount of a guaranteed loan made to a borrower is $10 million.
(c) The percentage of guarantee, up to the maximum allowed by this section, will be negotiated between the lender and the Agency. The maximum percentage of guarantee is 85 percent for loans of $600,000 or less; 80 percent for loans greater than $600,000 but up to $5 million; 70 percent for loans greater than $5 million but up to $10 million.
(d) The total amount of Agency loans under this program to one borrower, including the guaranteed and unguaranteed portions, the outstanding principal and interest balance of any existing Agency guaranteed loans, and new loan request, must not exceed $10 million.
(a) The interest rate for the guaranteed loan will be negotiated between the lender and the borrower and may be either fixed or variable as long as it is a legal rate. The variable rate will be based on published indices, such as money market indices. In no case, however, shall the rate be more than the rate customarily charged borrowers in similar circumstances in the ordinary course of business. The interest rate charged is subject to Agency review and approval.
(b) A variable interest rate agreed to by the lender and borrower must be a rate that is tied to a base rate agreed to by the lender and the Agency. The variable interest rate may be adjusted at different intervals during the term of the loan, but the adjustments may not be more often than quarterly and must be specified in the Loan Agreement. The lender must incorporate, within the variable rate Promissory Note at loan closing, the provision for adjustment of payment installments coincident with an interest-rate adjustment. The lender must ensure that the outstanding principal balance is properly amortized within the prescribed loan maturity to eliminate the possibility of a balloon payment at the end of the loan.
(c) Any change in the interest rate between the date of issuance of the Conditional Commitment and before the issuance of the Loan Note Guarantee must be approved in writing by the Agency approval official. Approval of such a change will be shown as an amendment to the Conditional Commitment.
(d) A combination of fixed and variable rates will be allowed.
(a) The maximum loan term limits will be utilized only when the loan cannot reasonably be repaid over a shorter term. The repayment term for a loan for:
(1) Real estate must not exceed 30 years.
(2) Machinery and equipment must not exceed 15 years, or the useful life, whichever is less.
(3) Repayment for combined loans on real estate and equipment must occur before 20 years.
(4) Working capital must not exceed 7 years.
(b) The first installment of principal and interest will, if possible, be scheduled for payment after the project is operational and has begun to generate income.
(c) Only loans that require a periodic payment schedule that will fully retire the debt over the term of the loan without a balloon payment will be guaranteed.
(d) A loan's maturity will take into consideration the use of proceeds, the useful life of assets being financed, and the borrower's ability to repay the loan.
(e) All loans guaranteed through this program must be sound, with reasonably assured repayment.
(a)
(b)
(c)
The following requirements apply to all guaranteed loan applications under this subpart.
(a)
(b)
(1) A completed Form 4279-1, “Application for Loan Guarantee.”
(2) A personal credit report for the borrower, a proprietor (owner), each partner, officer, director, key employee, and stockholder owning 20 percent or more interest in the borrower's business from a credit reporting company acceptable to the Agency.
(3) Appraisals completed in accordance with § 4280.141. Completed appraisals should be submitted when the application is filed. If the appraisal has not been completed when the application is filed, the applicant must submit an estimated appraisal. In all cases, a completed appraisal must be submitted prior to the loan being closed.
(4) Lender's complete comprehensive written analysis in accordance with § 4280.139.
(5) Commercial credit reports obtained by the lender on the borrower and any parent, affiliate, and subsidiary firms.
(6) Current personal and corporate financial statements of any guarantors.
(7) A proposed Loan Agreement or a sample Loan Agreement with an attached list of the proposed Loan Agreement provisions. The following requirements must be addressed in the proposed or sample Loan Agreement:
(i) Prohibition against assuming liabilities or obligations of others.
(ii) Restriction on dividend payments.
(iii) Limitation on the purchase or sale of equipment and fixed assets.
(iv) Limitation on compensation of officers and owners.
(v) Minimum working capital or current ratio requirement.
(vi) Maximum debt-to-net worth ratio.
(vii) Restrictions concerning consolidations, mergers, or other circumstances.
(viii) Limitations on selling the business without the concurrence of the lender.
(ix) Repayment and amortization of the loan.
(x) List of collateral and lien priority for the loan including a list of persons and corporations guaranteeing the loan with a schedule for providing the lender with personal and corporate financial
(xi) Type and frequency of financial statements to be required for the duration of the loan.
(xii) The final Loan Agreement between the lender and borrower must contain any additional requirements imposed by the Agency in its Conditional Commitment (Form 4279-3).
(xiii) When submitting the proposed Loan Agreement, a section within the loan agreement reserved for the later insertion of any necessary measures by the borrower to avoid or reduce adverse environmental impacts from this proposal's construction or operation. Such measures, if necessary, will be determined by the Agency through the completion of the environmental review process.
(xiv) Allow the Agency access to the project and its performance information during its useful life and permit periodic inspection of the project by a representative of the Agency.
(8) A certification by the lender that it has completed a comprehensive written analysis of the proposal, the borrower is eligible, the loan is for authorized purposes, and there is reasonable assurance of repayment ability based on the borrower's history, projections and equity, and the collateral to be obtained.
(c)
(d)
(a)
(b)
(c)
(1) If the rate of the loan is below the Prime Rate (as published in The Wall Street Journal) plus 1.75 percent (5 points); and
(2) If the rate of the loan is below the Prime Rate (as published in The Wall Street Journal) plus 1 percent (an additional 5 points).
(d)
An eligible lender is any Federal or State chartered bank, Farm Credit Bank, other Farm Credit System institution with direct lending authority, Bank for Cooperatives, or Savings and Loan Association. These entities must be subject to credit examination and supervision by either an agency of the United States or a State. Eligible lenders will also include credit unions, provided they are subject to credit examination and supervision by either the National Credit Union Administration or a State agency, and insurance companies, provided they are regulated by a State or National insurance regulatory agency. Eligible lenders include the National Rural Utilities Cooperative Finance Corporation.
(a)
(1) Process applications for guaranteed loans;
(2) Develop and maintain adequately documented loan files;
(3) Recommend only loan proposals that are eligible and financially feasible;
(4) Obtain valid evidence of debt and collateral in accordance with sound lending practices;
(5) Supervise construction;
(6) Distribute loan funds; A lender that is considering advancing an interim loan is advised that the Agency assumes no responsibility or obligation to take out an interim loan advanced prior to the Conditional Commitment being issued;
(7) Service guaranteed loans in a reasonable and prudent manner; including liquidation, if necessary;
(8) Follow Agency regulations; and
(9) Obtain Agency approvals or concurrence as required.
(b)
(c)
(d)
(1)
(2)
(e)
Both the lender and borrower must permit representatives of the Agency (or other agencies of the United States) to inspect and make copies of any records of the lender or borrower pertaining to the Agency guaranteed loans during regular office hours of the lender or borrower or at any other time upon agreement between the lender, the borrower, and the Agency, as appropriate.
A loan guarantee under this subpart will be evidenced by a Loan Note Guarantee issued by the Agency. Each lender must execute a Lender's Agreement (Form 4279-4). If a valid Lender's Agreement already exists, it is not necessary to execute a new Lender's Agreement with each loan guarantee. The provisions of this subpart apply to all outstanding guarantees. In the event of a conflict between the guarantee documents and this subpart as they exist at the time the documents are executed, this subpart will control.
(a)
(1) To any holder, 100 percent of any loss sustained by the holder on the guaranteed portion of the loan and on interest due on such portion.
(2) To the lender, the lesser of:
(i) Any loss sustained by the lender on the guaranteed portion, including principal and interest evidenced by the notes or assumption agreements and secured advances for protection and preservation of collateral made with the Agency's authorization; or
(ii) The guaranteed principal advanced to or assumed by the borrower and any interest due thereon.
(b)
(c)
(a) The lender may sell all or part of the guaranteed portion of the loan on the secondary market or retain the entire loan. The lender must not sell or assign any amount of the guaranteed or unguaranteed portion of the loan to the borrower or members of the borrower's immediate families, officers, directors, stockholders, other owners, or a parent, subsidiary or affiliate. If the lender desires to market all or part of the guaranteed portion of the loan at or subsequent to loan closing, such loan must not be in default. Loans made with the proceeds of any obligation, the interest on which is excludable from income under 26 U.S.C. § 103 (interest on State and local banks) or any successor section, will not be guaranteed.
(b) The entire loan must be evidenced by one note, and only one Loan Note Guarantee will be issued. The lender may assign all or part of the guaranteed portion of the loan to one or more holders only by using the Agency's Assignment Guarantee Agreement. The holder, upon written notice to the lender and the Agency, may reassign the unpaid guaranteed portion of the loan sold under the Assignment Guarantee Agreement. Upon notification and completion of the assignment, the assignee will succeed to all rights and obligations of the holder thereunder.
(c) The lender's servicing fee will stop when the Agency purchases the guaranteed portion of the loan from the secondary market. No such servicing fee may be charged to the Agency and all loan payments and collateral proceeds received will be applied first to the guaranteed loan and, when applied to the guaranteed loan, will be applied on a pro rata basis.
The lender may obtain participation in the loan under its normal operating procedures; however, the lender must retain title to the note and retain its interest in the collateral.
The lender must hold in its own portfolio a minimum of 5 percent of the total loan amount. The amount required to be maintained must be of the unguaranteed portion of the loan and cannot be participated to another. The lender may sell the remaining amount of the unguaranteed portion of the loan only through participation.
(a)
(b)
(1) If the lender does not repurchase the unpaid guaranteed portion of the loan as provided in paragraph (a) of this section, the Agency will purchase from the holder the unpaid principal balance of the guaranteed portion together with accrued interest to date of repurchase, less the lender's servicing fee, within 30 days after written demand to the Agency from the holder. (This is in addition to the copy of the written demand on the lender.) The guarantee will not cover the note interest to the holder on the guaranteed loan accruing after 90 days from the date of the original demand letter of the holder to the lender requesting the repurchase.
(2) The holder's demand to the Agency must include a copy of the written demand made upon the lender. The holder must also include evidence of its right to require payment from the Agency. Such evidence must consist of either the original of the Loan Note Guarantee properly endorsed to the Agency or the original of the Assignment Guarantee Agreement properly assigned to the Agency without recourse including all rights, title, and interest in the loan. The holder must include in its demand the amount due including unpaid principal, unpaid interest to date of demand, and interest subsequently accruing from date of demand to proposed payment date. The Agency will be subrogated to all rights of the holder.
(3) The Agency will notify, in writing, the lender of its receipt of the holder's demand for payment. The lender must promptly provide the Agency with the information necessary for the Agency to determine the appropriate amount due the holder. Upon request by the Agency, the lender will furnish a current statement certified by an appropriate, authorized officer of the lender of the unpaid principal and interest then owed by the borrower on the loan and the amount then owed to any holder. Any discrepancy between the amount claimed by the holder and the information submitted by the lender must be resolved between the lender and the holder before payment will be approved. Such conflict will suspend the running of the 30-day payment requirement.
(4) Purchase by the Agency neither changes, alters, nor modifies any of the lender's obligations to the Agency arising from the loan or guarantee nor does it waive any of the Agency's rights against the lender. The Agency has the right to set-off against the lender all rights inuring to the Agency as the holder of the instrument against the Agency's obligation to the lender under the guarantee.
(c)
(a) The Agency may issue a replacement Loan Note Guarantee or Assignment Guarantee Agreement which was lost, stolen, destroyed, mutilated, or defaced to the lender or holder upon receipt of an acceptable certificate of loss and an indemnity bond.
(b) When a Loan Note Guarantee or Assignment Guarantee Agreement is lost, stolen, destroyed, mutilated, or defaced while in the custody of the lender or holder, the lender must coordinate the activities of the party who seeks the replacement documents and will submit the required documents to the Agency for processing. The requirements for replacement are as follows:
(1) A certificate of loss, notarized and containing a jurat, which includes:
(i) Name and address of owner;
(ii) Name and address of the lender of record;
(iii) Capacity of person certifying;
(iv) Full identification of the Loan Note Guarantee or Assignment Guarantee Agreement including the name of the borrower, the Agency's case number, date of the Loan Note Guarantee or Assignment Guarantee Agreement, face amount of the evidence of debt purchased, date of evidence of debt, present balance of the loan, percentage of guarantee, and, if an Assignment Guarantee Agreement, the original named holder and the percentage of the guaranteed portion of the loan assigned to that holder. Any existing parts of the document to be replaced must be attached to the certificate;
(v) A full statement of circumstances of the loss, theft, mutilation, defacement, or destruction of the Loan Note Guarantee or Assignment Guarantee Agreement; and
(vi) For the holder, evidence demonstrating current ownership of the Loan Note Guarantee and Note or the Assignment Guarantee Agreement. If the present holder is not the same as the original holder, a copy of the endorsement of each successive holder in the chain of transfer from the initial holder to present holder must be included if in existence. If copies of the endorsement cannot be obtained, best available records of transfer must be submitted to the Agency (
(2) An indemnity bond acceptable to the Agency must accompany the request for replacement except when the holder is the United States, a Federal Reserve Bank, a Federal corporation, a State or territory, or the District of Columbia. The bond must be with surety except when the outstanding principal balance and accrued interest due the present holder is less than $1 million, verified by the lender in writing in a letter of certification of balance due. The surety must be a qualified surety company holding a certificate of authority from the Secretary of the Treasury and listed in Treasury Department Circular 570.
(3) All indemnity bonds must be issued and payable to the United States of America acting through the USDA. The bond must be in an amount not less than the unpaid principal and interest. The bond must hold USDA harmless against any claim or demand which might arise or against any damage, loss, costs, or expenses which might be sustained or incurred by reasons of the loss or replacement of the instruments.
The lender must determine credit quality and must address all of the elements of credit quality in a written credit analysis including adequacy of equity, cash flow, collateral, history, management, and the current status of the industry for which credit is to be extended.
(a)
(b)
(c)
(1) For loans over $600,000, borrowers shall demonstrate evidence of cash equity injection in the project of not less than 25 percent of eligible project costs. The fair market value of equity in real property that is to be pledged as collateral for the loan may be substituted in whole or in part to meet the cash equity requirement. However, the appraisal completed to establish the fair market value of the real property must not be more than one year old and must meet the Agency appraisal standards.
(2) For loans of $600,000 or less, borrowers shall demonstrate evidence of cash equity injection in the project of not less than 15 percent of eligible project costs. However, the appraisal completed to establish the fair market value of the real property must not be more than one year old and must meet the Agency appraisal standards.
(d)
(a) Except for the requirement to demonstrate financial need for the funding, the financial information required in § 4280.111(a)(4)(iii) is required for the guaranteed loan program.
(b) If the proposed guaranteed loan exceeds $3 million, the Agency will require annual audited financial statements.
(a)
(b)
(c)
(a) Personal and corporate guarantees, when obtained, are part of the collateral for the loan. However, the value of such guarantee is not considered in determining whether a loan is adequately secured for loanmaking purposes.
(b) Unconditional personal and corporate guarantees for those owning or having a beneficial interest greater than 20 percent of the borrower will be required where legally permissible.
(a) Upon approval of a loan guarantee, the Agency will issue a Conditional Commitment to the lender containing conditions under which a Loan Note Guarantee will be issued
(b) If certain conditions of the Conditional Commitment cannot be met, the lender and/or borrower may propose alternate conditions. Within the requirements of the applicable regulations and instructions and reasonable and prudent lending practices, the Agency may negotiate with the lender and/or borrower regarding any proposed changes to the Conditional Commitment.
(a) The Agency may approve the substitution of a new eligible lender in place of a former lender who holds an outstanding Conditional Commitment when the Loan Note Guarantee has not yet been issued provided, that there are no changes in the borrower's ownership or control, loan purposes, or scope of project, and loan conditions in the Conditional Commitment and the Loan Agreement remain the same.
(b) The new lender's servicing capability, eligibility, and experience will be analyzed by the Agency prior to approval of the substitution. The original lender will provide the Agency with a letter stating the reasons it no longer desires to be a lender for the project. The substituted lender must execute a new part B of Form 4279-1, “Application for Loan Guarantee.”
Any changes in borrower ownership or organization prior to the issuance of the Loan Note Guarantee must meet the eligibility requirements of the program and be approved by the Agency loan approval official.
The Loan Note Guarantee will not be issued until the lender certifies to the following:
(a) No major changes have been made in the lender's loan conditions and requirements since the issuance of the Conditional Commitment, unless such changes have been approved by the Agency.
(b) All planned property acquisition has been completed, all development has been completed in accordance with
(c) Hazard, flood, liability, worker compensation, and personal life insurance, when required, are in effect.
(d) Truth-in-lending requirements have been met.
(e) All equal credit opportunity requirements have been met.
(f) The loan has been properly closed, and the required security instruments have been obtained.
(g) The borrower has marketable title to the collateral then owned by the borrower, subject to the instrument securing the loan to be guaranteed and to any other exceptions approved in writing by the Agency.
(h) When required, the entire amount of the loan for working capital has been disbursed except in cases where the Agency has approved disbursement over an extended period of time.
(i) When required, personal, partnership, or corporate guarantees have been obtained.
(j) All other requirements of the Conditional Commitment have been met.
(k) Lien priorities are consistent with the requirements of the Conditional Commitment. No claims or liens of laborers, subcontractors, suppliers of machinery and equipment, or other parties have been or will be filed against the collateral, and no suits are pending or threatened that would adversely affect the collateral when the security instruments are filed.
(l) The loan proceeds have been or will be disbursed for purposes and in amounts consistent with the Conditional Commitment and the Application for Loan Guarantee (Form 4279-1). A copy of the detailed loan settlement of the lender must be attached to support this certification.
(m) There has been neither any material adverse change in the borrower's financial condition nor any other material adverse change in the borrower, for any reason, during the period of time from the Agency's issuance of the Conditional Commitment to issuance of the Loan Note Guarantee, regardless of the cause or causes of the change and whether or not the change or causes of the change were within the lender's or borrower's control. The lender must address any assumptions or reservations in the requirement and must address all adverse changes of the borrower, any parent, affiliate, or subsidiary of the borrower, and guarantors.
(n) None of the lender's officers, directors, stockholders, or other owners (except stockholders in an institution that has normal stockshare requirements for participation) has a substantial financial interest in the borrower and neither the borrower nor its officers, directors, stockholders, or other owners has a substantial financial interest in the lender. If the borrower is a member of the board of directors or an officer of a Farm Credit System (FCS) institution that is the lender, the lender will certify that an FCS institution on the next highest level will independently process the loan request and act as the lender's agent in servicing the account.
(o) The Loan Agreement includes all measures identified in the Agency's environmental impact analysis for this proposal (measures with which the borrower must comply) for the purpose of avoiding or reducing adverse environmental impacts of the proposal's construction or operation.
(a) When loan closing plans are established, the lender must notify the Agency in writing. At the same time, or immediately after loan closing, the lender must provide the following to the Agency:
(1) Lender's certifications as required by § 4280.146,
(2) Executed Form 4279-4, “Lender's Agreement,” and
(3) Executed Form RD 1980-19, “Guaranteed Loan Closing Report” and appropriate guarantee fee.
(b) When the Agency is satisfied that all conditions for the guarantee have been met, the Loan Note Guarantee and the following documents, as appropriate, will be issued:
(1)
(2)
(3) Copies of legal loan documents; and
(4) Disbursement plan if working capital is a purpose of the project.
If the Agency determines that it cannot execute the Loan Note Guarantee, the Agency will promptly inform the lender of the reasons and give the lender a reasonable period within which to satisfy the objections. If the lender requests additional time in writing and within the period allowed, the Agency may grant the request. If the lender satisfies the objections within the time allowed, the guarantee will be issued.
Once the project has been constructed, the lender must provide the Agency periodic reports from the borrower. The borrower's reports will include, but not be limited to, the information specified in paragraphs (a) and (b) of this section, as applicable.
(a) For renewable energy systems, commencing the first full calendar year following the year in which project construction was completed and continuing for 3 full years, provide a report detailing the following will be provided:
(1) Report the actual amount of energy produced in BTUs, kilowatts, or similar energy equivalents.
(2) If applicable, provide documentation that identified health and/or sanitation problem has been solved.
(3) Provide the annual income and/or energy savings of the renewable energy system.
(4) Summarize the cost of operating and maintaining the facility.
(5) Description of any maintenance or operational problems associated with the facility.
(6) Recommendations for development of future similar projects.
(b) For energy efficiency improvement projects, commencing the first full calendar year following the year in which project construction was completed and continuing for 2 full years, report the actual amount of energy saved due to the energy efficiency improvements.
(a) Each borrower must obtain the insurance required in § 4280.113(a) through (c) and in paragraphs (b) and (c) in this section. The coverage required by this section must be maintained for the life of the loan unless this requirement is waived or modified by the Agency in writing.
(b) Hazard insurance with a standard mortgage clause naming the lender as beneficiary will be required on every
(c) The lender may require life insurance on every loan to insure against the risk of death of persons critical to the success of the business. When required, coverage will be in amounts necessary to provide for management succession or to protect the business. The cost of insurance and its effect on the borrower's working capital must be considered as well as the amount of existing insurance which could be assigned without requiring additional expense.
(a) Each applicant and borrower must comply with the requirements specified in § 4280.114(a), (b), and (d), as applicable, and with paragraph (b) of this section.
(b)
The lender must service the entire loan and must remain mortgagee and secured party of record notwithstanding the fact that another party may hold a portion of the loan. The entire loan must be secured by the same security with equal lien priority for the guaranteed and unguaranteed portions of the loan. The unguaranteed portion of a loan will neither be paid first nor given any preference or priority over the guaranteed portion of the loan.
(a)
(1)
(2)
(3)
(4)
(5)
(b)
(1)
(i) Fixed rates can be changed to variable rates to reduce the borrower's interest rate only when the variable rate has a ceiling which is less than or equal to the original fixed rate.
(ii) Variable rates can be changed to a fixed rate which is at or below the current variable rate.
(iii) The interest rates, after adjustments, must comply with the requirements for interest rates on new loans as established by § 4280.124.
(iv) The lender is responsible for the legal documentation of interest-rate changes by an endorsement or any other legally effective amendment to the promissory note; however, no new notes may be issued. Copies of all legal documents must be provided to the Agency.
(2)
(c)
(1) All releases of collateral with a value exceeding $100,000 must be supported by a current appraisal on the collateral released. The appraisal will be at the expense of the borrower and must meet the requirements of § 4280.141. The remaining collateral must be sufficient to provide for repayment of the Agency's guaranteed loan. The Agency may, at its discretion, require an appraisal of the remaining collateral in cases where it is determined that the Agency may be adversely affected by the release of collateral. Sale or release of collateral must be based on an arm's-length transaction and adequate consideration.
(2) Within the parameters of paragraph (c)(1) of this section, lenders may, over the life of the loan, release collateral (other than personal and corporate guarantees) with a cumulative value of up to 20 percent of the original loan amount without Agency concurrence, if the proceeds generated are used to reduce the guaranteed loan or to buy replacement collateral or buy real estate equal to or greater than the collateral being replaced.
(3) Within the parameters of paragraph (c)(1) of this section, release of collateral with a cumulative value in excess of 20 percent of the original loan or when the proceeds will not be used to reduce the guaranteed loan or to buy replacement collateral must be requested in writing by the lender and concurred in by the Agency in writing in advance of the release. A written evaluation will be completed by the lender to justify the release.
(d)
(e)
(f)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(i) The assumption will be done on the lender's assumption agreement and will contain the Agency case number of the transferor and transferee. The lender must provide the Agency with a copy of the transfer and assumption agreement. The lender must ensure that the transfer and assumption is noted on the original Loan Note Guarantee.
(ii) A new Loan Agreement, consistent in principle with the original Loan Agreement, must be executed to establish the terms and conditions of the loan being assumed. An assumption agreement can be used to establish the loan covenants.
(iii) The lender must provide to the Agency a written certification that the transfer and assumption is valid, enforceable, and complies with all Agency regulations.
(8)
(9)
(10)
(11)
(i) The lender must have an appropriate appraiser, acceptable to both the transferee and transferor and currently authorized to perform appraisals to determine the value of the collateral securing the loan. The Agency will not pay the appraisal fee or any other costs.
(ii) The market value of the collateral, plus any additional property the transferee proposes to offer as collateral, must be adequate to secure the balance of the guaranteed loans.
(iii) Cash down payments may be paid directly to the transferor provided:
(A) The lender recommends that the cash be released, and the Agency concurs prior to the transaction being completed. The lender may wish to require that an amount be retained for a defined period of time as a reserve against future defaults. Interest on such account may be paid periodically to the transferor or transferee as agreed;
(B) The lender determines that the transferee has the repayment ability to meet the obligations of the assumed guaranteed loan as well as any other indebtedness;
(C) Any payments by the transferee to the transferor will not suspend the transferee's obligations to continue to meet the guaranteed loan payments as they come due under the terms of the assumption; and
(D) The transferor agrees not to take any action against the transferee in connection with the assumption without prior written approval of the lender and the Agency.
After the issuance of a Loan Note Guarantee, the lender must not sell or transfer the entire loan without the prior written approval of the Agency. The Agency will not pay any loss or share in any costs (i.e., appraisal fees, environmental studies, or other costs associated with servicing or liquidating the loan) with a new lender unless a relationship is established through a substitution of lender in accordance with paragraph (a) of this section. This includes cases where the lender has failed and been taken over by a regulatory agency such as the Federal Deposit Insurance Corporation (FDIC) and the loan is subsequently sold to another lender.
(a) The Agency may approve the substitution of a new lender if:
(1) The proposed substitute lender:
(i) Is an eligible lender in accordance with § 4280.130;
(ii) Is able to service the loan in accordance with the original loan documents; and
(iii) Agrees in writing to acquire and must acquire title to the unguaranteed portion of the loan held by the original lender and assumes all original loan requirements, including liabilities and servicing responsibilities.
(2) The substitution of the lender is requested in writing by the borrower, the proposed substitute lender, and the original lender if still in existence.
(b) Where the lender has failed and been taken over by FDIC and the guaranteed loan is liquidated by FDIC rather than being sold to another lender, the Agency will pay losses and share in costs as if FDIC were an approved substitute lender.
(a) The lender must notify the Agency, in writing, when a borrower is 30 days past due on a payment or is otherwise in default of the Loan Agreement. Form RD 1980-44, “Guaranteed Loan Borrower Default Status” must be used and the lender must continue to submit this form bi-monthly until such time as the loan is no longer in default. If a monetary default exceeds 60 days, the lender must arrange a meeting with the Agency and the borrower to resolve the problem.
(b) In considering options, the prospects for providing a permanent cure without adversely affecting the risk to the Agency and the lender is the paramount objective.
(1) Curative actions include but are not limited to:
(i) Deferment of principal (subject to rights of any holder);
(ii) An additional unguaranteed temporary loan by the lender to bring the account current;
(iii) Reamortization of or rescheduling the payments on the loan (subject to rights of any holder);
(iv) Transfer and assumption of the loan in accordance with § 4280.152(f);
(v) Reorganization;
(vi) Liquidation;
(vii) Subsequent loan guarantees; and
(viii) Changes in interest rates with the Agency's, the lender's, and the holder's approval, provided that the interest rate is adjusted proportionately between the guaranteed and unguaranteed portion of the loan and the type of rate remains the same.
(2) In the event a deferment, rescheduling, reamortization, or moratorium is accomplished, it will be limited to the remaining life of the collateral or loan terms, whichever is less.
Protective advances are advances made by the lender for the purpose of preserving and protecting the collateral where the debtor has failed to, will not, or cannot meet its obligations. Sound judgment must be exercised in determining that the protective advance preserves collateral and recovery is actually enhanced by making the advance. Protective advances will not be made in lieu of additional loans.
(a) The maximum loss to be paid by the Agency will never exceed the original principal plus accrued interest regardless of any protective advances made.
(b) Protective advances and interest thereon at the note rate will be guaranteed at the same percentage of loss as provided in the Loan Note Guarantee.
(c) Protective advances must constitute an indebtedness of the borrower to the lender and be secured by the security instruments. Agency written authorization is required when cumulative protective advances exceed $5,000.
In the event of one or more incidents of default or third party actions that the borrower cannot or will not cure or eliminate within a reasonable period of time, liquidation of the loan may be considered by the lender. If the lender concludes that liquidation is necessary, it must request the Agency's concurrence. The lender will liquidate the loan unless the Agency, at its option, carries out liquidation. When the decision to liquidate is made, if the loan has not already been repurchased, provisions will be made for repurchase in accordance with § 4280.137.
(a)
(1) A loan has been delinquent 90 days and the lender and borrower have not been able to cure the delinquency through one of the actions contained in § 4280.154;
(2) It has been determined that delaying liquidation will jeopardize full recovery on the loan; and
(3) The borrower or lender has been uncooperative in resolving the problem and the Agency or the lender has reason to believe the borrower is not acting in good faith, and it would enhance the position of the guarantee to liquidate immediately.
(b)
(c)
(d)
(1) Such proof as the Agency requires to establish the lender's ownership of the guaranteed loan promissory note and related security instruments and a copy of the payment ledger, if available, which reflects the current loan balance and accrued interest to date and the method of computing the interest;
(2) A full and complete list of all collateral including any personal and corporate guarantees;
(3) The recommended liquidation methods for making the maximum collection possible on the indebtedness and the justification for such methods, including recommended action:
(i) For acquiring and disposing of all collateral; and
(ii) To collect from guarantors;
(4) Necessary steps for preservation of the collateral;
(5) Copies of the borrower's latest available financial statements;
(6) Copies of the guarantor's latest available financial statements;
(7) An itemized list of estimated liquidation expenses expected to be incurred along with justification for each expense;
(8) A schedule to periodically report to the Agency on the progress of liquidation;
(9) Estimated protective advance amounts with justification;
(10) Proposed protective bid amounts on collateral to be sold at auction and a breakdown to show how the amounts were determined;
(11) A voluntary conveyance, if one is considered, including the proposed amount to be credited to the guaranteed debt;
(12) Legal opinions, if needed; and
(13) If the outstanding balance of principal and accrued interest is less than $100,000, the lender will obtain an estimate of fair market and potential liquidation value of the collateral. If the outstanding balance of principal and accrued interest is $100,000 or more, the lender will obtain an independent appraisal report meeting the requirements of § 4280.141 on all collateral securing the loan that will reflect the fair market value and potential liquidation value. In order to formulate a liquidation plan which maximizes recovery, collateral must be evaluated for the release of hazardous substances, petroleum products, or other environmental hazards which may adversely impact the market value of the collateral. Both the estimate and the appraisal must consider this aspect. The independent appraiser's fee, including the cost of the environmental site assessment, will be shared equally by the Agency and the lender.
(e)
(1) A transfer and assumption of the borrower's operation can be accomplished before or after the loan goes into liquidation. However, if the collateral has been purchased through foreclosure or the borrower has conveyed title to the lender, no transfer and assumption is permitted.
(2) A protective bid may be made by the lender, with prior Agency written approval, at a foreclosure sale to protect the lender's and the Agency's interest. The protective bid must not exceed the amount of the loan, including expenses of foreclosure, and should be based on the liquidation value considering estimated expenses for holding and reselling the property. These expenses include, but are not limited to, expenses for resale, interest accrual, length of time necessary for resale, maintenance, guard service, weatherization, and prior liens.
(f)
(g)
(h)
(i)
(j)
(1) The cost of liquidation is increased or the value of the collateral is decreased by environmental issues;
(2) The collateral is functionally or economically obsolete;
(3) There are superior liens held by other parties in excess of the value of the collateral;
(4) The collateral has deteriorated; or
(5) The collateral is specialized and there is little or no demand for it.
(k)
(1) A borrower voluntarily liquidates the collateral, but the sale fails to pay the guaranteed indebtedness;
(2) The collateral is voluntarily conveyed to the lender, but the borrower and personal and corporate guarantors are not released from liability; or
(3) A liquidation plan is being developed for forced liquidation.
(l)
(1) The lender and the Agency must receive complete financial information on all parties obligated for the loan and must be satisfied that the statements reflect the true and correct financial position of the debtor including all assets. Adequate consideration must be received before a release from liability is issued. Adequate consideration includes money, additional security, or other benefit to the goals and objectives of the Agency.
(2) Before a personal guarantor can be released from liability, the following factors must be considered.
(i) Cash, either lump sum or over a period of time, or other consideration offered by the guarantor;
(ii) Age and health of the guarantor;
(iii) Potential income of the guarantor;
(iv) Inheritance prospects of the guarantor;
(v) Availability of the guarantor's assets.
(vi) Possibility that the guarantor's assets have been concealed or improperly transferred; and
(vii) Effect of other guarantors on the loan.
(3) Once the Agency and the lender agree on a reasonable amount that is fair and adequate, the lender can proceed to effect the settlement compromise.
(4) A compromise will only be accepted if it is in the best interest of the Agency.
In all liquidation cases, final settlement will be made with the lender after the collateral is liquidated, unless otherwise designated as a future recovery or after settlement and compromise of all parties has been completed. The Agency will have the right to recover losses paid under the guarantee from any party that may be liable.
(a)
(b)
(1) The estimated loss payment must be applied as of the date of such payment. The total amount of the loss payment remitted by the Agency will be applied by the lender on the guaranteed portion of the loan debt. Such application does not release the borrower from liability.
(2) An estimated loss will be applied first to reduce the principal balance on the guaranteed loan and the balance, if any, to accrued interest. Interest accrual on the defaulted loan will be discontinued.
(3) A protective advance claim will be paid only at the time of the final report of loss payment except in certain transfer and assumption situations as specified in § 4280.152(f).
(c)
(1) A determination must be made regarding the collectibility of unsecured personal and corporate guarantees. If reasonably possible, such guarantees should be promptly collected or otherwise disposed of in accordance with § 4280.156(k) prior to completion of the final loss report. However, in the event that collection from the guarantors appears unlikely or will require a prolonged period of time, the report of loss will be filed when all other collateral has been liquidated, and unsecured personal or corporate guarantees will be treated as a future recovery with the net proceeds to be shared on a pro rata basis by the lender and the Agency.
(2) The lender must document that all of the collateral has been accounted for and properly liquidated and that liquidation proceeds have been properly accounted for and applied correctly to the loan.
(3) The lender must show a breakdown of any protective advance amount as to the payee, purpose of the expenditure, date paid, and evidence that the amount expended was proper and that payment was actually made.
(4) The lender will show a breakdown of liquidation expenses as to the payee, purpose of the expenditure, date paid, and evidence that the amount expended was proper and that payment was actually made. Liquidation expenses are recoverable only from collateral proceeds. Attorney fees may be approved as liquidation expenses provided the fees are reasonable and cover legal issues pertaining to the liquidation that could not be properly handled by the lender and its in-house counsel.
(5) Accrued interest must be supported by documentation as to how the amount was accrued. If the interest rate was a variable rate, the lender must include documentation of changes in both the selected base rate and the loan rate.
(6) Loss payments will be paid by the Agency within 60 days after the review of the final loss report and accounting of the collateral.
(d)
(e)
(f)
(g)
(1) If the loss is greater than any estimated loss payment, the Agency will pay the additional amount owed by the Agency to the lender.
(2) If the loss is less than the estimated loss payment, the lender must reimburse the Agency for the overpayment plus interest at the note rate from the date of payment.
(3) If the Agency has conducted the liquidation, it will pay the lender in accordance with the Loan Note Guarantee.
After a loan has been liquidated and a final loss has been paid by the Agency, any future funds which may be recovered by the lender must be pro rated between the Agency and the lender based on the original percentage of guarantee.
The lender must protect the guaranteed loan and all collateral securing the loan in bankruptcy proceedings.
(a)
(1) The lender must file a proof of claim where necessary and all the necessary papers and pleadings concerning the case;
(2) The lender must attend and, where necessary, participate in meetings of the creditors and all court proceedings;
(3) When permitted by the Bankruptcy Code, the lender must request modification of any plan of reorganization whenever it appears that additional recoveries are likely;
(4) The Agency must be kept informed on a regular basis in writing of all aspects of the proceedings; and
(5) In a Chapter 11 reorganization, if an independent appraisal of collateral is necessary in the Agency's opinion, the Agency and the lender will share such appraisal fee equally.
(b)
(1) Estimated loss payments.
(i) If a borrower has filed for protection under Chapter 11 of Title 11 of the United States Code for a reorganization (but not Chapter 13) and all or a portion of the debt has been discharged, the lender must request an estimated loss payment of the guaranteed portion of the accrued interest and principal discharged by the court. Only one estimated loss payment is allowed during the reorganization. All subsequent claims of the lender during reorganization will be considered revisions to the initial estimated loss. A revised estimated loss payment may be processed by the Agency, at its option, in accordance with any court-approved changes in the reorganization plan. Once the reorganization plan has been completed, the lender is responsible for submitting the documentation necessary for the Agency to review and adjust the estimated loss claim to reflect any actual discharge of principal and interest and to reimburse the lender for any court-ordered interest-rate reduction under the terms of then reorganization plan.
(ii) The lender must use the Loan Note of Guarantee Report of Loss to request an estimated loss payment and to revise any estimated loss payments during the course of the reorganization plan. The estimated loss claim, as well as any revisions to this claim, will be accompanied by documentation to support the claim.
(iii) Upon completion of a reorganization plan, the lender must complete and forward Form RD 1980-44, “Guaranteed Loan Borrower Default Status,” to the Agency.
(2) Interest loss payments.
(i) Interest losses sustained during the period of the reorganization plan will be processed in accordance with paragraph (b)(1) of this section.
(ii) Interest losses sustained after the reorganization plan is completed will be processed annually when the lender sustains a loss as a result of a permanent interest rate reduction which extends beyond the period of the reorganization plan.
(iii) If an estimated loss claim is paid during the operation of the Chapter 11 reorganization plan and the borrower repays in full the remaining balance without an additional loss sustained by the lender, a final report of loss is not necessary.
(3) Final loss payments. Final loss payments will be processed when the loan is liquidated.
(4) Payment application. The lender must apply estimated loss payments first to the unsecured principal of the guaranteed portion of the debt and then to the unsecured interest of the guaranteed portion of the debt. In the event a bankruptcy court attempts to direct the payments to be applied in a different manner, the lender will immediately notify the Agency servicing office in writing.
(5) Overpayments. Upon completion of the reorganization plan, the lender will provide the Agency with the documentation necessary to determine whether the estimated loss paid equals the actual loss sustained. If the actual loss sustained as a result of the reorganization is less than the estimated loss, the lender must reimburse the Agency for the overpayment plus interest at the note rate from the date of payment of the estimated loss. If the actual loss is greater than the estimated loss payment, the lender must submit a revised estimated loss in order to obtain payment of the additional amount owed by the Agency to the lender.
(6) Protective advances. If approved protective advances were made prior to the borrower having filed bankruptcy, these protective advances and accrued interest will be considered in the loss calculations.
(c)
(1) When a bankruptcy proceeding results in a liquidation of the borrower by a trustee, legal expenses will be handled as directed by the court.
(2) Chapter 11 generally pertains to a reorganization of a business contemplating an ongoing business, rather than a termination and dissolution of the business, where legal protection is afforded to the business as defined under Chapter 11 of the Bankruptcy Code. Consequently, expenses incurred by the lender in a Chapter 11 reorganization can never be liquidation expenses unless the proceeding becomes a Chapter 11 liquidation. If the proceeding should become a liquidating Chapter 11, reasonable and customary liquidation expenses may be deducted from proceeds of collateral as provided in Form 4279-4, “Lender's Agreement.” Chapter 7 pertains to a liquidation of the borrower's assets. If, and when, liquidation of the borrower's assets under Chapter 7 is conducted by the bankruptcy trustee, then the lender cannot claim expenses.
A guarantee under this part will terminate automatically when any of the circumstances specified in paragraphs (a) through (c) of this section occurs.
(a) Upon full payment of the guaranteed loan;
(b) Upon full payment of any loss obligation; or
(c) Upon written notice from the lender to the Agency that the guarantee will terminate 30 days after the date of notice, provided that the lender holds all of the guaranteed portion and the Loan Note Guarantee is returned to the Agency to be canceled.
(a) The Agency will determine each year whether or not direct loan funds are available. For each year in which direct loan funds are available, the Agency will publish a Notice of Funds Availability (NOFA) in the
(b) In each direct loan NOFA, the Agency will identify the following:
(1) the amount of funds available for direct loans;
(2) applicant and project eligibility criteria;
(3) minimum and maximum loan amounts;
(4) interest rates;
(5) terms of loan;
(6) application and documentation requirements;
(7) evaluation of applications;
(8) actions required of the applicant/borrower (
(9) insurance requirements;
(10) laws that contain other compliance requirements;
(11) construction planning and performing development;
(12) requirements after project construction;
(13) letter of conditions, loan agreement, and loan closing process;
(14) processing and servicing of direct loans by the Agency; and
(15) any applicable definitions.
This section identifies the requirements for a project for which an applicant is seeking a combined grant and guaranteed loan.
(a)
(b)
(1) The amount of any combined grant and guaranteed loan must not exceed 50 percent of eligible project costs. For purposes of combined funding requests, total eligible project costs are based on the total costs associated with those items specified in §§ 4280.109(a) and 4280.123(a). The applicant must provide the remaining total funds needed to complete the project.
(2) Third-party, in-kind contributions will be limited to 10 percent of the matching fund requirement of the grantee/borrower.
(c)
(1) Separate applications for both types of assistance (grant and guaranteed loan) are required. Each application must meet the requirements specified in §§ 4280.111 and 4280.128. The separate applications must be submitted simultaneously.
(2) The documentation required for grants and guaranteed loans, as specified in §§ 4280.111 and 4280.128, respectively, must be submitted, as applicable, with the applications specified in paragraph (c) of this section. The applicant must submit at least one set of documentation.
(d)
(e)
(f)
(1) All other provisions of Section A of this subpart shall apply to the grant portion of the combined funding request.
(2) All other provisions of Section B of this subpart shall apply to the guaranteed loan portion of the combined funding request.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Summary presentation of final and interim rules, and technical amendments and corrections.
This document summarizes the Federal Acquisition regulation (FAR) rules agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council in this Federal Acquisition Circular (FAC) 2001-25. A companion document, the Small Entity Compliance Guide (SECG), follows this FAC. The FAC, including the SECG, is available via the Internet at
For effective dates and comment dates, see separate documents which follow.
The FAR Secretariat, at (202) 501-4755, for information pertaining to status or publication schedules. For clarification of content, contact the analyst whose name appears in the table below in relation to each FAR case or subject area. Please cite FAC 2001-25 and specific FAR case number(s). Interested parties may also visit our Web site at
Summaries for each FAR rule follow. For the actual revisions and/or amendments to these FAR cases, refer to the specific item number and subject set forth in the documents following these item summaries.
FAC 2001-25 amends the FAR as specified below:
This final rule eliminates the use of the Standard Form 1417, Pre-Solicitation Notice (Construction Contract), in contracts for construction, alteration or repair, dismantling, demolition, or removal of improvements. The use of this form has become unnecessary because contracting officers provide access to presolicitation notices through the Governmentwide point of entry (GPE) via the Internet at
The interim rule to implement new Free Trade Agreements with Chile and Singapore, published in the
This interim rule addresses telecommuting by employees of Federal contractors. This rule implements Section 1428 of the Services Acquisition Reform Act of 2003 (Title XIV of Public Law 108-136), which prohibits agencies from including a requirement in a solicitation that precludes an offeror from permitting its employees to telecommute or, when telecommuting is not precluded, from unfavorably evaluating an offeror's proposal that includes telecommuting unless it would adversely affect agency requirements, such as security. Contracting officers awarding service contracts should familiarize themselves with this rule.
This interim rule extends from October 1, 2004, to April 1, 2005, the micropurchase exception from the requirement to purchase electronic and information technology that provides individuals with disabilities better access to and use of information and data, as required by Section 508 of the Rehabilitation Act of 1973. The extension will provide agencies time to update their purchase card training modules on the 508 requirements and train their personnel. This rule is of special interest to contracting officers who purchase electronic and information technology.
Editorial changes are made at FAR 14.403(c), 52.212-5(b)(34)(ii), 52.215-15(b)(2), 52.217-5, and 52.219-4(d)(3) to update various references.
Federal Acquisition Circular (FAC) 2001-25 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration.
Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2001-25 is effective October 5, 2004, except for Item I, which is effective November 4, 2004.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to eliminate the use of the Standard Form (SF) 1417, Pre-Solicitation Notice (Construction Contract).
The FAR Secretariat at (202) 501-4755 for information pertaining to status or publication schedules. For clarification of content, contact Ms. Cecelia Davis, Procurement Analyst, at (202) 219-0202. Please cite FAC 2001-25, FAR case 2002-017.
This final rule amends FAR parts 1, 13, 19, 36, and 53, deleting the prescription for the use of the SF 1417. This final rule eliminates the use of this form in contracts for construction, alteration or repair, dismantling, demolition, or removal of improvements. The use of the form has become unnecessary because contracting officers are required to provide access to presolicitation notices through the Governmentwide point of entry (GPE) via the Internet at
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 Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not 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 apply; however, these changes to the FAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 9000-0037. This change has reduced the paperwork burden and no additional approval from OMB is required. The collection will be revised to reflect this reduction.
This final rule eliminates the use of Standard Form 1417 in contracts for construction, alteration or repair, dismantling, demolition, or removal of improvements but not the requirement for contracting officers to provide access to presolicitation notices through the Governmentwide point of entry via the Internet at
Requester may obtain a copy of the information collection from the General Services Administration, FAR Secretariat (V), Room 4035, Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control Number 9000-0037, Presolicitation Notice and Response, Standard Form 1417, in all correspondence.
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed to convert to a final rule, with changes, an interim rule amending the Federal Acquisition Regulation (FAR). The interim rule implemented new Free Trade Agreements with Chile and Singapore, as approved by Congress (Public Laws 108-77 and 108-78). The interim rule also implemented new dollar thresholds for application of trade agreements.
The FAR Secretariat at (202) 501-4755 for information pertaining to status or publication schedules. For clarification of content, contact Ms. Cecelia Davis, Procurement Analyst, at (202) 219-0202. Please cite FAC 2001-25, FAR case 2003-016.
The Free Trade Agreements with Chile and Singapore waive the applicability of the Buy American Act for some foreign supplies and construction materials from Chile and Singapore, and specify procurement procedures designed to ensure fairness, applicable to the acquisition of supplies and services (see the Government Procurement provisions at Chapters 9 and 13, respectively, of the trade agreements). The interim rule was published in the
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 Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not 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 apply; however, these changes to the FAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Numbers 9000-0130, 9000-0025, and 9000-0141, respectively.
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(a) Insert the clause at 52.233-1, Disputes, in solicitations and contracts, unless the conditions in 33.203(b) apply. If it is determined under agency procedures that continued performance is necessary pending resolution of any claim arising under or relating to the contract, the contracting officer shall use the clause with its Alternate I.
(b) Insert the clause at 52.233-4 in all solicitations and contracts.
(a) The Contractor shall comply with the following Federal Acquisition Regulation (FAR) clauses, which are incorporated in this contract by reference, to implement provisions of law or Executive orders applicable to acquisitions of commercial items:
(1) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553).
(2) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Pub. L. 108-77, 108-78).
(a) * * *
(1) * * *
(vi) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 2004) (Pub. L. 108-77, 108-78).
As prescribed in 33.215(b), insert the following clause:
United States law will apply to resolve any claim of breach of this contract.
(End of clause)
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Interim rule with request for comments.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on an interim rule amending the Federal Acquisition Regulation (FAR) to implement Section 1428 of the Services Acquisition Reform Act of 2003, Title XIV of Public Law 108-136, Authorization of Telecommuting for Federal Contractors.
Submit comments identified by FAC 2001-25, FAR case 2003-025, by any of the following methods:
• Federal eRulemaking Portal:
• Agency Web Site:
• E-mail:
• Fax: 202-501-4067.
• Mail: General Services Administration, Regulatory Secretariat (V), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405.
The FAR Secretariat at (202) 501-4755, for information pertaining to status or publication schedules. For clarification of content, contact Mr. Gerald Zaffos, Procurement Analyst, at (202) 208-6091. Please cite FAC 2001-25, FAR case 2003-025.
This interim rule implements Section 1428 of the Services Acquisition Reform Act of 2003 (Title XIV of Public Law 108-136). Section 1428 requires the amendment of the FAR to permit telecommuting by employees of Federal Government contractors in the performance of contracts entered into with executive agencies. Specifically, Section 1428 states that solicitations for the acquisition of property or services may not include any requirement or evaluation criteria that would render an offeror ineligible to enter into a contract because it proposes to permit its employees to telecommute, unless the contracting officer determines that the requirements of the agency, including security requirements, cannot be met if telecommuting is permitted. The contracting officer must document in writing the basis for the determination. Also, the solicitation cannot contain any evaluation criteria that would reduce the scoring of an offer because the offeror proposes to permit its employees to telecommute, unless the contracting officer determines that the requirements of the agency, including security requirements, would be adversely impacted if telecommuting is allowed. The contracting officer must document in writing the basis for this determination as well.
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 interim rule is not expected 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 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,
A determination has been made under the authority of the Secretary of Defense (DoD), the Administrator of General Services (GSA), and the Administrator of the National Aeronautics and Space Administration (NASA) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because this statute requires that the FAR be amended no later than 180 days after enactment. The statute was enacted on November 24, 2003, which required amending the FAR by May 22, 2004. However, pursuant to Public Law 98-577 and FAR 1.501, the Councils will consider public comments received in response to this interim rule in the formation of the final rule.
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
In accordance with section 1428 of Public Law 108-136, an agency shall generally not discourage a contractor from allowing its employees to telecommute in the performance of Government contracts. Therefore, agencies shall not—
(a) Include in a solicitation a requirement that prohibits an offeror from permitting its employees to telecommute unless the contracting officer first determines that the requirements of the agency, including security requirements, cannot be met if telecommuting is permitted. The contracting officer shall document the basis for the determination in writing and specify the prohibition in the solicitation; or
(b) When telecommuting is not prohibited, unfavorably evaluate an offer because it includes telecommuting, unless the contracting officer first determines that the requirements of the agency, including security requirements, would be adversely impacted if telecommuting is permitted. The contracting officer shall document the basis for the determination in writing and address the evaluation procedures in the solicitation.
(g) Agencies shall not include in a solicitation a requirement that prohibits an offeror from permitting its employees to telecommute unless the contracting officer executes a written determination in accordance with FAR 7.108(a).
(b) * * *
(2) If telecommuting is not prohibited, agencies shall not unfavorably evaluate an offer because it includes telecommuting unless the contracting officer executes a written determination in accordance with FAR 7.108(b).
(c) * * *
(6) If telecommuting is not prohibited, agencies shall not unfavorably evaluate an offer that includes telecommuting unless the contracting officer executes a written determination in accordance with FAR 7.108(b).
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Interim rule with request for comments.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on an interim rule amending the Federal Acquisition Regulation (FAR) to extend the micro-purchase exemption for purchasing electronic and information technology (EIT) that conforms to the requirements of Section 508 of the Rehabilitation Act of 1973 from October 1, 2004, to April 1, 2005. No further extensions will be granted. The extension until April 1, 2005, will provide agencies time to update their purchase card training modules on the 508 requirements and train their personnel.
Submit comments identified by FAC 2001-25, FAR case 2004-020 by any of the following methods:
• Federal eRulemaking Portal:
• Agency Web Site:
• E-mail:
• Fax: 202-501-4067.
• Mail: General Services Administration, Regulatory Secretariat (V), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405.
The FAR Secretariat at (202) 501-4755, for information pertaining to status or publication schedules. For clarification of content, contact Ms. Linda Nelson, Procurement Analyst, at (202) 501-1900. Please cite FAC 2001-25, FAR case 2004-020.
Section 508 of the Rehabilitation Act of 1973 requires that the Electronic and Information Technology (EIT) developed, procured, maintained, or used by the Federal Government provide individuals with disabilities access to and use of information and data that is comparable to the access and use of information and data by individuals without disabilities. The law was implemented first through standards developed by the Architectural and Transportation Barriers Compliance Board, (“Access Board”) and then incorporated into the FAR.
Initially, the FAR exempted micropurchases from the 508 requirements until January 1, 2003. (See FAR Case 1999-607, 66 FR 20894, April 25, 2001.) The rule's preamble gave notice that the Government would revisit the issue prior to the sunset date. This deadline was extended (FAR Case 2002-012, 67 FR 80321, December 31, 2002 and 68 FR 43872, July 24, 2003) and is due to expire October 1, 2004.
The FAR Council is extending the micropurchase exception from October 1, 2004, to April 1, 2005, and no additional extensions will be granted. Agencies have had three years of experience with Section 508, and industry continues to make investments in accessible technology to support the requirements. The extension until April 1, 2005, will provide agencies time to update their purchase card training modules on the 508 requirements and train their personnel. Free, online training developed by GSA, in collaboration with the Section 508 Executive Steering Committee, is available at
The FAR Council received public comments on the first extension to October 1, 2004. None of the comments received took issue with extending the micropurchase exception. Extending the micropurchase exemption will not cause a significant impact on the disability community or industry.
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 interim rule is not expected 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,
Therefore, an Initial Regulatory Flexibility Analysis has not been performed. The Councils will consider comments from small entities concerning the affected FAR Part 39 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C 601,
The Paperwork Reduction Act does not apply because the 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,
A determination has been made under the authority of the Secretary of Defense (DoD), the Administrator of General Services (GSA), and the Administrator of the National Aeronautics and Space Administration (NASA) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because the rule extends an exception that would otherwise impose training burdens that the acquisition community may be challenged to meet by October 1, 2004. The extension until April 1, 2005, will provide agencies time to update their purchase card training modules on the 508 requirements and train their personnel. However, pursuant to Public Law 98-577 and FAR 1.501, the Councils will consider public comments received in response to this interim rule in the formation of the final rule.
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
This document makes amendments to the Federal Acquisition Regulation (FAR) in order to make editorial changes.
The FAR Secretariat, Room 4035, GS Building, Washington, DC, 20405, (202) 501-4755, for information pertaining to status or publication schedules. Please cite FAC 2001-25, Technical Amendments.
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(c) The forms identified in paragraph (a) of this section need not be used by the Defense Energy Support Center for acquisitions of coal or petroleum products or by the Defense Supply Center Philadelphia for perishable subsistence items.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Small Entity Compliance Guide.
This document is issued under the joint authority of the Secretary of Defense, the Administrator of General Services and the Administrator for the National Aeronautics and Space Administration. This Small Entity Compliance Guide has been prepared in accordance with Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. It consists of a summary of rules appearing in Federal Acquisition Circular (FAC) 2001-25 which amend the FAR. An asterisk (*) next to a rule indicates that a regulatory flexibility analysis has been prepared. Interested parties may obtain further information regarding these rules by referring to FAC 2001-25 which precedes this document. These documents are also available via the Internet at
Laurie Duarte, FAR Secretariat, (202) 501-4225. For clarification of content, contact the analyst whose name appears in the table below.
This final rule eliminates the use of the Standard Form 1417, Pre-Solicitation Notice (Construction Contract), in contracts for construction, alteration or repair, dismantling, demolition, or removal of improvements. The use of this form has become unnecessary because contracting officers provide access to presolicitation notices through the Governmentwide point of entry (GPE) via the Internet at
The interim rule to implement new Free Trade Agreements with Chile and Singapore, published in the
This interim rule addresses telecommuting by employees of Federal contractors. This rule implements Section 1428 of the Services Acquisition Reform Act of 2003 (Title XIV of Public Law 108-136), which prohibits agencies from including a requirement in a solicitation that precludes an offeror from permitting its employees to telecommute or, when telecommuting is not precluded, from unfavorably evaluating an offeror's proposal that includes telecommuting unless it would adversely affect agency requirements, such as security. Contracting officers awarding service contracts should familiarize themselves with this rule.
This interim rule extends from October 1, 2004, to April 1, 2005, the micropurchase exception from the requirement to purchase electronic and information technology that provides individuals with disabilities better access to and use of information and data, as required by Section 508 of the Rehabilitation Act of 1973. The extension will provide agencies time to update their purchase card training modules on the 508 requirements and train their personnel. This rule is of special interest to contracting officers who purchase electronic and information technology.
Editorial changes are made at FAR 14.403(c), 52.212-5(b)(34)(ii), 52.215-15(b)(2), 52.217-5, and 52.219-4(d)(3) to update various references.
Agricultural Marketing Service, USDA.
Interim final rule with request for comments.
The Farm Security and Rural Investment Act of 2002 (Farm Bill) and the 2002 Supplemental Appropriations Act (2002 Appropriations) amended the Agricultural Marketing Act of 1946 (Act) to direct the Secretary of Agriculture to promulgate regulations by September 30, 2004, requiring retailers to notify their customers of the country of origin of covered commodities. Covered commodities include muscle cuts of beef (including veal), lamb, and pork; ground beef, ground lamb, and ground pork; farm-raised fish and shellfish; wild fish and shellfish; perishable agricultural commodities; and peanuts. The FY 2004 Consolidated Appropriations Act (2004 Appropriations) (Public Law 108-199) delayed the applicability of mandatory country of origin labeling (COOL) for all covered commodities except wild and farm-raised fish and shellfish until September 30, 2006. After issuance of a proposed rule, the Department has decided to provide further opportunity to comment due to the changes made as a result of comments received and the costs associated with this rule. This interim final rule contains definitions, the requirements for consumer notification and product marking, and the recordkeeping responsibilities of both retailers and suppliers for fish and shellfish covered commodities. Regulatory provisions for the other covered commodities will be provided in a separate regulatory action as appropriate.
This interim final rule is effective April 4, 2005. The requirements of this rule do not apply to frozen fish or shellfish caught or harvested before December 6, 2004. Comments must be submitted on or before January 3, 2005, to be assured of consideration.
Send written comments to: Country of Origin Labeling Program, Room 2092-S; Agricultural Marketing Service (AMS), USDA; STOP 0249; 1400 Independence Avenue, SW., Washington, DC 20250-0249, or by facsimile to (202) 720-3499, or by e-mail to
William Sessions, Associate Deputy Administrator, Livestock and Seed Program, AMS, USDA, by telephone on 202/720-5705, or via e-mail at:
The information that follows has been divided into three sections. The first section provides background information including questions and answers about this interim final rule, a summary of the history of this rulemaking, and a general overview of the law. The second section provides a discussion of the rule's requirements, including a summary of the comments received in response to the proposed rule published in the October 30, 2003,
The Farm Bill (Public Law 107-171) amended the Act (7 U.S.C. 1621
Questions regarding whether a product is considered a covered commodity or is labeled accurately under this regulation may be e-mailed to
Fish and shellfish covered commodities are exempt from COOL under this rule if they are an ingredient in a processed food item. An ingredient is a component either in part or in full of a finished retail food product. A processed food item is a retail item derived from fish or shellfish that has undergone specific processing resulting in a change in the character of the covered commodity, or that has been combined with at least one other covered commodity or other substantive food components (
The law prescribes specific criteria that must be met for a covered commodity to bear a “United States country of origin” declaration. The specific requirements for fish and shellfish covered commodities are as follows: Farm-raised fish and shellfish—covered commodities must be derived exclusively from fish or shellfish hatched, raised, harvested, and processed in the United States, and that has not undergone a substantial transformation (as established by U.S. Customs and Border Protection) outside of the United States; wild fish and shellfish—covered commodities must be derived exclusively from fish or shellfish either harvested in the waters of the United States or by a U.S. flagged vessel and processed in the United States or aboard a U.S. flagged vessel, and that has not undergone a substantial transformation (as established by U.S. Customs and Border Protection) outside of the United States.
For imported covered commodities that have not subsequently been substantially transformed in the United States that are commingled with other imported and/or U.S. origin commodities, the declaration shall indicate the countries of origin for all covered commodities in accordance with existing Federal legal requirements. For imported covered commodities that have subsequently undergone substantial transformation in the United States that are commingled with other imported covered commodities that have subsequently undergone substantial transformation in the United States (either prior to or following substantial transformation in the United States) and/or U.S. origin covered commodities, the declaration shall indicate the countries of origin contained therein or that may be contained therein.
The labeling requirements are consistent with other Federal legal requirements under which facilities are not required to separately track throughout the process, and ultimately into each individual retail package, the country source of the commodities that are found within each individual retail package. Rather, the declaration of the retail product can indicate the several countries of origin that are represented in the overall blending process, without being required to verify which specific countries of origin are found within each individual retail package.
The COOL provision of the Farm Bill applies to all covered commodities. Moreover, the law specifically identifies the criteria that products of U.S. origin must meet. The law further states that “
The effective date of this regulation is six months following the date of publication of this interim final rule. The requirements of this rule do not apply to frozen fish or shellfish caught or harvested before December 6, 2004. The country of origin statute provides that “not later than September 30, 2004, the Secretary shall promulgate such regulations as are necessary to implement this subtitle.” Many of the covered commodities sold at retail are in a frozen or otherwise preserved state (
USDA will seek to enter into partnerships with States having existing enforcement infrastructure to assist in the administration of this law. USDA will determine the scheduling and procedures for the compliance reviews. Only USDA will be able to initiate enforcement actions against a person found to be in violation of the law. USDA may also conduct investigations of complaints made by any person alleging violations of these regulations when the Secretary determines that reasonable grounds for such investigation exist. In addition, the Agency plans to publish a compliance guide that will provide the industry with information on compliance and the phasing in of active enforcement.
Any person engaged in the business of supplying a covered commodity to a retailer, whether directly or indirectly, must maintain records to establish and identify the immediate previous source (if applicable) and immediate subsequent recipient of a covered commodity, in such a way that identifies the product unique to that transaction by means of a lot number or other unique identifier, for a period of 1 year from the date of the transaction. For retailers, records and other documentary evidence relied upon at the point of sale by the retailer to establish a product's country(ies) of origin and method(s) of production (wild and/or farm-raised) must be available during normal business hours to any duly authorized representatives of USDA for as long as the product is on hand. For pre-labeled products, the label itself is sufficient evidence on which the retailer may rely to establish a product's origin and method(s) of production (wild and/or farm-raised). Records that identify the supplier, the product unique to that transaction by means of a lot number or other unique identifier, and for products that are not pre-labeled, the country of origin and method of production (wild and/or farm-raised) information must be
To the extent that State country of origin labeling programs encompass commodities which are not governed by this regulation, the States may continue to operate them. For those State country of origin labeling programs that encompass commodities that are governed by this regulation, these programs are preempted.
Yes. Such voluntary claims must be truthful and accurate and adhere to existing Federal labeling regulations.
This interim final rule is issued pursuant to the Farm Bill, the 2002 Appropriations, and the 2004 Appropriations, which amended the Act.
On October 11, 2002, AMS published Guidelines for the Interim Voluntary Country of Origin Labeling of Beef, Lamb, Pork, Fish, Perishable Agricultural Commodities, and Peanuts (67 FR 63367) providing interested parties with 180 days to comment on the utility of the voluntary guidelines.
On November 21, 2002, AMS published a notice requesting emergency approval of a new information collection (67 FR 70205) providing interested parties with a 60-day period to comment on AMS' burden estimates associated with the recordkeeping requirements as required by the Paperwork Reduction Act of 1995 (PRA). On January 22, 2003, AMS published a notice extending this comment period (68 FR 3006) an additional 30 days.
On October 30, 2003, AMS published the proposed rule for the mandatory COOL program (68 FR 61944) with a 60-day comment period. On December 22, 2003, AMS published a notice extending the comment period (68 FR 71039) an additional 60 days.
Section 10816 of Public Law 107-171 (7 U.S.C. 1638-1638d) amended the Act (7 U.S.C. 1621
The intent of this law is to provide consumers with additional information on which to base their purchasing decisions. COOL is a retail labeling program and as such does not provide a basis for addressing food safety. Seafood products, both imported and domestic, must meet the food safety standards of the Food and Drug Administration (FDA). The law defines the term “covered commodity” as muscle cuts of beef (including veal), lamb, and pork; ground beef, ground lamb, and ground pork; farm-raised fish and shellfish; wild fish and shellfish; perishable agricultural commodities; and peanuts. The law excludes items from needing to bear a country of origin declaration when a covered commodity is an “ingredient in a processed food item.” The law defines the terms “retailer” and “perishable agricultural commodity” as having the meanings given those terms in PACA. The law defines the term “wild fish” as naturally-born or hatchery-raised fish and shellfish harvested in the wild and excludes net-pen aquacultural or other farm-raised fish.
The law specifically outlines the criteria a covered commodity must meet in order to bear a “United States country of origin” declaration. In the case of farm-raised fish and shellfish, the covered commodity must be derived from fish or shellfish hatched, raised, harvested, and processed in the United States. In the case of wild fish and shellfish, the covered commodity must be derived from fish or shellfish harvested in the waters of the United States or by a U.S. flagged vessel and processed in the United States or aboard a U.S. flagged vessel. In addition, the law also requires that fish and shellfish covered commodities be labeled to indicate whether they are wild or farm-raised.
To convey the country of origin information, the law states that retailers may use a label, stamp, mark, placard, or other clear and visible sign on the covered commodity or on the package, display, holding unit, or bin containing the commodity at the final point of sale to consumers. Food service establishments, such as restaurants, cafeterias, food stands, and other similar facilities are exempt from these labeling requirements.
The law makes reference to the definition of “retailer” in section 1(b) of PACA as the meaning of “retailer” for the application of the labeling requirements under the COOL law. Under this interim final rule, a retailer is any person engaged in the business of selling any perishable agricultural commodity at retail. Retailers are required to be licensed when the invoice cost of all purchases of produce exceeds $230,000 during a calendar year. Since fish markets and similar specialty shops do not generally sell fruits and vegetables, they do not meet the PACA definition of a retailer and therefore are not covered by this rule.
The law requires any person engaged in the business of supplying a covered commodity to a retailer to provide the retailer with the product's country of origin information. In addition, the law states the Secretary of Agriculture may require that any person that prepares, stores, handles, or distributes a covered commodity for retail sale maintain a verifiable recordkeeping audit trail. The law prohibits the Secretary from using a mandatory identification system to verify the country of origin of a covered commodity and provides examples of existing certification programs that may be used to certify the country of origin of a covered commodity. The law contains enforcement provisions for both retailers and suppliers that include civil penalties of up to $10,000 for each violation. The law also encourages the Secretary to enter into partnerships with States with enforcement infrastructure to the extent possible to assist in the program's administration.
The term “covered commodity” includes: farm-raised fish and shellfish (including fillets, steaks, nuggets, and any other flesh) and wild fish and shellfish (including fillets, steaks, nuggets, and any other flesh).
Items are excluded from labeling under this regulation when a covered commodity is an ingredient in a processed food item. Under this interim final rule, a “processed food item” is defined as: a retail item derived from fish or shellfish that has undergone specific processing resulting in a change in the character of the covered commodity, or that has been combined with at least one other covered commodity or other substantive food component (breading, tomato sauce), except that the addition of a component (such as water, salt, or sugar) that enhances or represents a further step in the preparation of the product for consumption, would not in itself result in a processed food item. Specific processing that results in a change in the character of the covered commodity includes cooking (
The law prescribes specific criteria that must be met for a covered commodity to bear a “United States country of origin” declaration. The specific requirements for each commodity are as follows:
(a) Farm-raised Fish and Shellfish—covered commodities must be derived exclusively from fish or shellfish hatched, raised, harvested, and processed in the United States, and that has not undergone a substantial transformation (as established by U.S. Customs and Border Protection) outside of the United States.
(b) Wild Fish and Shellfish—covered commodities must be derived exclusively from fish or shellfish either harvested in the waters of the United States or by a U.S. flagged vessel and processed in the United States or aboard a U.S. flagged vessel, and that has not undergone a substantial transformation (as established by U.S. Customs and Border Protection) outside of the United States.
Under this interim final rule, an imported covered commodity shall retain its origin as declared to U.S. Customs and Border Protection at the time the product enters the United States, through retail sale, provided it has not undergone a substantial transformation (as established by U.S. Customs and Border Protection) in the United States.
Covered commodities imported in consumer-ready packages are currently required to bear a country of origin declaration on each individual package under the Tariff Act of 1930 (Tariff Act). This interim final rule does not change these requirements.
Under this interim final rule, in the case of wild fish and shellfish, if a covered commodity was imported from country X and substantially transformed (as established by U.S. Customs and Border Protection guidelines and policies) in the United States or aboard a U.S. flagged vessel, the product shall be labeled at retail as “From [country X], processed in the United States.” The covered commodity must also be labeled to indicate that it was derived from wild fish or shellfish.
In the case of farm-raised fish, if a covered commodity was imported from country X at any stage of production and substantially transformed (as established by U.S. Customs and Border Protection guidelines and policies) in the United States, the product shall be labeled at retail as “From [country X], processed in the United States.” The covered commodity shall also be labeled to indicate that it was derived from farm-raised fish or shellfish.
Under this interim final rule, the country of origin declaration of blended or commingled retail food items comprised of the same covered commodity (
For sales of a covered commodity in which the customer purchases a covered commodity prior to having an opportunity to observe the final package (
Under this interim final rule, the country of origin declaration and method of production (wild and/or farm-raised) designation may be provided to consumers by means of a label, stamp, mark, placard, band, twist tie, pin tag, or other clear and visible sign on the covered commodity or on the package, display, holding unit, or bin containing the commodity at the final point of sale to consumers. The country of origin declaration and method of production (wild and/or farm-raised) designation may be combined or made separately. Except as provided in § 60.200(g) and § 60.200 (h)(2) of this regulation, the declaration of the country(ies) of origin of a product shall be listed according to existing Federal legal requirements. Abbreviations and variant spellings that unmistakably indicate the country of origin, such as “U.K.” for “The United Kingdom of Great Britain and Northern Ireland” are acceptable. The adjectival form of the name of a country may be used as proper notification of the country(ies) of origin of imported commodities provided the adjectival form of the name does not appear with other words so as to refer to a kind or species of product. Symbols or flags alone may not be used to denote country of origin.
With respect to the production designation, various forms of the production designation are acceptable, including “wild caught,” “wild,” “farm-raised,” “farmed,” or a combination of these terms for blended products that contain both wild and farm-raised fish or shellfish provided it can be readily understood by the consumer and is in conformance with other Federal labeling laws. Designations such as “ocean caught,” “caught at sea”, “line caught,” “cultivated,” or “cultured” do not meet the requirements of this regulation. Alternatively, the method of production (wild and/or farm-raised) designation may also be in the form of a check box. However, the labeling requirements under this rule do not supersede any existing Federal legal requirements, unless otherwise specified, and any such country of origin and method of production (wild and/or farm-raised) notification must not obscure or intervene with other labeling information required by existing regulatory requirements.
In order to provide the industry with as much flexibility as possible, this rule does not contain specific requirements
The law states that the Secretary may require any person that prepares, stores, handles, or distributes a covered commodity for retail sale to maintain a verifiable recordkeeping audit trail that will permit the Secretary to verify compliance. As such, records and other documentary evidence to substantiate origin declarations and designations of wild and/or farm-raised are necessary in order to provide retailers with credible information on which to base origin declarations.
Under this interim final rule, any person engaged in the business of supplying a covered commodity to a retailer, whether directly or indirectly (
Any person engaged in the business of supplying a covered commodity to a retailer, whether directly or indirectly, must maintain records to establish and identify the immediate previous source (if applicable) and immediate subsequent recipient of a covered commodity, in such a way that identifies the product unique to that transaction by means of a lot number or other unique identifier, for a period of 1 year from the date of the transaction.
In addition, the supplier of a covered commodity that is responsible for initiating a country of origin declaration and method of production (wild and/or farm-raised) designation must possess records necessary to substantiate the claim.
For an imported covered commodity, the importer of record as determined by CBP, must ensure that records: provide clear product tracking from the U.S. port of entry to the immediate subsequent recipient and accurately reflect the country(ies) of origin and method(s) of production (wild and/or farm-raised) of the item as identified in relevant CBP entry documents and information systems; and maintain such records for a period of 1 year from the date of the transaction.
Any intermediary supplier (
Under this interim final rule, retailers also have recordkeeping responsibilities. Records and other documentary evidence relied upon at the point of sale by the retailer to establish a product's country(ies) of origin and method(s) of production (wild and/or farm-raised), or, if applicable, date of harvest or capture designation, must be available during normal business hours to any duly authorized representatives of USDA for as long as the product is on hand. For pre-labeled products (
Any retailer handling a covered commodity that is found to be designated incorrectly as to country of origin and/or the method of production (wild and/or farm-raised) shall not be held liable by reason of the conduct of another if the retailer could not have been reasonably expected to have had knowledge of the violation.
The law encourages the Secretary to enter into partnerships with States to the extent practicable to assist in the administration of this program. As such, USDA will seek to enter into partnerships with States that have enforcement infrastructure to conduct retail compliance reviews.
Routine compliance reviews may be conducted at retail establishments and associated administrative offices, and at supplier establishments subject to these regulations. USDA will coordinate the scheduling and determine the procedures for compliance reviews. Only USDA will be able to initiate enforcement actions against a person found to be in violation of the law. USDA may also conduct investigations of complaints made by any person alleging violations of these regulations when the Secretary determines that reasonable grounds for such investigation exist.
Retailers and suppliers, upon being notified of the commencement of a compliance review, must make all records or other documentary evidence material to this review available to USDA representatives in a timely manner during normal hours of business and provide any necessary facilities for such inspections.
The law contains enforcement provisions for both retailers and suppliers that include civil penalties of up to $10,000 for each violation. For retailers, the law states that if the Secretary determines that a retailer is in violation of the Act, the Secretary must notify the retailer of the determination and provide the retailer with a 30-day period during which the retailer may take necessary steps to comply. If upon completion of the 30-day period the Secretary determines the retailer has willfully violated the Act, after providing notice and an opportunity for a hearing, the retailer may be fined not more than $10,000 for each violation.
For suppliers, the law states that section 253 of the Act shall apply to a violation of this subpart. This section states in part that in determining the amount of a civil penalty to be assessed for violations of this subpart, the
In addition to the enforcement provisions contained in the Act, statements regarding a product's origin must also comply with other existing Federal statutes. For example, the Federal Food, Drug, and Cosmetic Act prohibits labeling that is false or misleading. Thus, inaccurate country of origin labeling of covered commodities may lead to additional penalties under this statute as well.
In order to provide regulated parties with additional information relative to the enforcement of this program, AMS will issue a compliance guide. This compliance guide will contain additional information about the audit process, the types of records that may be useful in verifying compliance with this regulation, examples of instances that would be considered violations, as well as other information that may be useful in complying with this regulation.
On October 30, 2003, AMS published the proposed rule for the mandatory COOL program (68 FR 61944) with a 60-day comment period. On December 22, 2003, AMS published a notice extending the comment period (68 FR 71039) an additional 60 days. AMS received over 5,600 timely comments from consumers, retailers, foreign governments, producers, wholesalers, manufacturers, distributors, members of Congress, trade associations and other interested parties. The majority of the comments received were from consumers expressing support for the requirement to label the method of production of fish and shellfish as either wild and/or farm-raised. Numerous other comments related to the definition of a processed food item, the recordkeeping requirements for both retailers and suppliers, and the enforcement of the program. In addition, over 100 late comments were received which generally reflected the substance of the timely comments received. Specific comments are discussed in detail below. As this interim final rule contains the requirements for labeling fish and shellfish covered commodities, to the extent practicable, only those comments that pertain to fish and shellfish covered commodities and to the general requirements of this regulation are discussed herein. In some cases, the summary of comments and Agency response encompass both fish and shellfish covered commodities and other covered commodities. These comments and the Agency response are included in this interim final rule in cases where their inclusion facilitates the reader's understanding of the changes that were made in this rule based on the commenters' recommendations.
Agency Response: Because of changes made by the Agency in the regulatory text in § 60.200(g) to simplify the labeling of imported products that have been substantially transformed in the United States, the Agency no longer believes that a separate definition of processed is necessary. With respect to allowing imported products that have been subjected to processing beyond repackaging but less than substantial transformation to voluntarily be labeled as processed in the United States, such labeling would not conform to U.S. Customs and Border Protection requirements. Accordingly, because the definition of processed has been deleted no changes have been made as a result of these comments.
The interim final rule reduces the recordkeeping burden at the retailer's point of sale from 7 days following retail sale of the product to the length of time the product is on hand. The interim final rule also reduces the recordkeeping burden for suppliers and retailers of covered commodities from 2 years to 1 year.
The Agency disagrees that the law provides discretionary authority to use general rather than specific labels for products involving more than one country. The law requires a retailer of a covered commodity to inform consumers of the country of origin of a covered commodity. A label such as “mixed origin” does not fulfill this requirement because it provides no information regarding the country of origin of the commodity, other than the fact that the origin involves more than one country.
The January 2004 poll commissioned by the National Farmers Union reconfirms that consumers, when prompted, indicate an interest in country of origin information for food. The poll also indicates that respondents would be “willing to pay a few cents more” for food products grown and/or raised in the U.S. This poll does not overcome limitations of previous surveys and willingness-to-pay studies, namely, that there is little basis to support the notion that these prompted responses will carry over into actual purchasing behavior. No comments brought forth evidence that there are barriers to the voluntary provision of country of origin information by firms that produce and market the covered commodities. In addition, the Agency did not receive any information that indicated an increased demand for U.S.-origin products in States that currently require country of origin labeling for some of the covered commodities. Therefore, the Agency continues to conclude that in the presence of demand for U.S.-origin products, food companies would respond by sourcing such products and providing consumers with the information.
Taking into account comments received on the proposed rule, the Agency concludes in its interim final economic impact assessment that implementation costs will exceed the lower range estimates presented in the preliminary economic impact assessment published with the proposed rule. Affected firms and trade associations noted that implementation costs will involve costs and operational changes beyond recordkeeping practices alone. Therefore, in its interim final economic impact assessment, the Agency no longer presents a range of costs.
PACA requires maintenance of records and firms subject to PACA have developed recordkeeping systems to comply with the requirements of PACA. The existence of such infrastructure and recordkeeping systems reduces the incremental costs of additional informational requirements, including mandatory COOL. The Agency's preliminary cost estimates reflected these existing conditions, which is one reason that per-unit costs were estimated generally to be less for perishable agricultural commodities than for other covered commodities not covered by PACA, its regulations, and recordkeeping requirements.
Agency Response: Voluntary State labeling programs have limited application to the analysis of the impacts of the rule. First and foremost, State labeling programs are voluntary, while this rule is mandatory. Under these types of voluntary State programs, there is no requirement for any firms to participate, and firms will not choose to participate unless it is in their economic interest to do so. Even when firms do participate in these types of voluntary State programs, they are not required to label everything that they sell. Conversely, this rule is mandatory, and retailers and their suppliers must adhere to the requirements of the rule for 100 percent of the sales of the covered commodities that must be labeled at retail. Second, these voluntary State programs do not have the same types of requirements for recordkeeping and tracking as contained in this mandatory rule. Third, State labeling programs such as “Buy California” and “Go Texan” generally involve a more comprehensive program of marketing and promotional tools beyond just labeling, while this mandatory rule addresses labeling but does not address marketing and promotional activities. For example, some State programs require certain minimum quality standards for participation in the program. Most State programs also include promotional and marketing activities by the State. Such voluntary quality standards and promotional activities imply different market effects compared to this rule, which addresses only labeling requirements.
Agency Response: The Agency believes that these types of costs will be incurred to implement the rule. Both the preliminary upper-range cost estimates published with the proposed rule and the interim final economic impact assessment reflect these added costs.
In the case of fish and seafood intermediaries and retailers, the Agency adopted the upper range of the Sparks/CBW estimated costs per pound. However, the Agency estimated that greater total units of fish and seafood production would be affected by mandatory COOL. In the case of both intermediaries and retailers, the Agency's preliminary estimates for fish and seafood intermediaries included canned product, while the Sparks/CBW estimates included only fresh and frozen product. The Agency's revised estimates exclude canned product, as well as fish sticks, fish portions, and breaded shrimp, due to the change in the definition of a processed food item. In addition, Sparks/CBW estimated that one-third of fish and seafood products would move through retail, compared to the Agency's estimate that 41.4 percent of the domestic disappearance of the covered commodities would be sold through retailers covered by this rule. The Agency received no comments to refute its initial estimated share of production that would be sold through retailers covered by this rule, but the share estimates are revised to reflect the lower proportion of fish and shellfish consumed at home relative to other food products.
Fish markets and other retailers not subject to mandatory COOL may have a cost advantage over retailers subject to the rule, but the law defines explicitly which retailers are required to provide country of origin information.
The Agency recognizes that all producers and intermediaries choosing to sell through marketing channels supplying the covered retailers would
Bureau of Labor Statistics (BLS) data are used for both the wage and for overhead costs (which include social security, unemployment insurance, workers compensation, and other benefits). In this interim final rule, the wage rates and fringe benefits rate are both updated to 2002 BLS figures, which results in increased wage rates and benefits. The Agency believes this is the most accurate and documented estimate of wages and additional employer paid benefits.
Taking into account Agency reviews of retailers' operations, the Agency believes that an additional hour of recordkeeping activities for country of origin information will be incurred daily at each retail establishment. The Agency's estimate of one hour per day for retailers is only for the maintenance portion of the recordkeeping of country of origin information. Maintenance activities will include inputting, tracking, and storing country of origin information for each covered commodity.
In summary, this interim final rule adopts the fish and shellfish provissions of the October 30, 2003 (68 FR 61944), proposed rule with the changes discussed herein and with other changes made for purposes of clarity and accuracy.
USDA has examined the economic impact of this interim final rule as required by Executive Order 12866. In its Preliminary Regulatory Impact Assessment (PRIA), USDA determined that the regulatory action was economically significant, as it was likely to result in a rule that would have an annual effect on the economy of $100 million or more. Although the estimated annual effect on the economy of this interim final rule for fish and shellfish is less than $100 million, it remains an economically significant regulatory action because it would adversely affect in a material way a sector of the economy and therefore has been reviewed by the Office of Management and Budget (OMB). Executive Order 12866 requires that a regulatory benefit-cost analysis be performed on all economically significant regulatory actions.
This interim final regulatory impact assessment reflects revisions to the PRIA (68 FR 61952). Revisions to the PRIA were made as a result of changes to this rule relative to the proposed rule, in responses to comments on the PRIA itself, and as a result of narrowing the scope of covered commodities affected by the rule. Specifically, this interim final rule defines covered commodities as farm-raised and wild fish and shellfish.
The Comments and Responses section lists the comments received on the PRIA and provides the Agency's responses to the comments. Where substantially unchanged, results of the PRIA are summarized herein, and revisions are described in detail. Interested readers are referred to the text of the PRIA for a more comprehensive discussion of the assumptions, data, methods, and results.
The estimated incremental benefits associated with this interim final rule are difficult to quantify, but current information indicates that they are not likely to be large. The estimated first-year incremental costs for fish and shellfish harvesters, producers, processors, wholesalers, and retailers are $89 million. Maintenance costs beyond the first year are expected to be lower than the combined start up and maintenance costs required in the first year. The estimated cost to the U.S. economy in higher food prices and reduced food production (deadweight loss) in the tenth year after implementation of the rule is $6.2 million, or about two cents per person annually based on the current U.S. population. In other words, the U.S. economy would be worse off after implementing this rule.
Note that this analysis addresses implementation of labeling requirements for fish and shellfish destined for human consumption only. Note also that this analysis does not quantify certain costs of the interim final rule such as the cost of the rule after the first year, or the cost of any supply disruptions or any other “lead-time” issues. Except for the
USDA finds little evidence that consumers are willing to pay a price premium for country of origin labeling. USDA also finds little evidence that consumers are likely to increase their purchase of food items bearing the U.S. origin label as a result of this rulemaking. Current evidence does not suggest that U.S. producers will receive sufficiently higher prices for U.S.-labeled products to cover the labeling, recordkeeping, and other related costs. The lack of participation in voluntary programs for labeling products of U.S. origin provides evidence that consumers currently are unwilling to pay price premiums sufficient to recoup the costs of labeling.
Justification for this interim final rule remains unchanged from the PRIA. This rule is the direct result of statutory obligations to implement the COOL provisions of the Farm Bill, which amended the Act by adding Subtitle D—Country of Origin Labeling. There are no alternatives to Federal regulatory intervention for implementing this statutory directive.
The country of origin labeling provisions of the Farm Bill change current Federal labeling requirements for muscle cuts of beef, pork, and lamb; ground beef, ground pork, and ground lamb; farm-raised fish; wild fish; perishable agricultural commodities; and peanuts (hereafter, covered commodities). Under current Federal laws and regulations, COOL is not universally required for covered commodities. Provisions concerning labeling requirements for farm-raised and wild fish are provided herein. Labeling requirements for the remaining covered commodities become effective on September 30, 2006. Therefore, this rule and economic impact analysis address requirements and impacts for farm-raised and wild fish and shellfish only.
As described in the PRIA, the conclusion remains that there does not appear to be a compelling market failure argument regarding the provision of country of origin information. Comments received on the PRIA elicited no evidence of significant barriers to the provision of this information other than private costs to firms in the supply chain and low expected returns. Thus, market mechanisms likely would lead to the provision of the optimal level of country of origin information.
The PRIA noted that many aspects of the mandatory COOL provisions of Pub. L. 107-171 are prescriptive and provide little regulatory discretion for this rulemaking. Some commenters suggested that USDA explore more opportunities for less costly regulatory alternatives. Specific suggestions focused on methods for identifying country of origin, recordkeeping requirements, and the scope of products required to be labeled.
A number of comments on the PRIA suggested that USDA adopt a “presumption of U.S. origin” standard for identifying commodities of U.S. origin. Under this standard, only imported covered commodities would be required to be identified and tracked according to their respective countries of origin. Any covered commodity not so identified would then be considered by presumption to be of U.S. origin. A presumption of origin standard would require mandatory identification of products not of U.S. origin. The law, however, specifically prohibits USDA from using a mandatory identification system to verify the country of origin of a covered commodity. In addition, as discussed in the proposed rule (68 FR 61944), the Agency does not believe that a presumption of U.S. origin standard provides a means of providing country of origin information that is credible and can be verified. Comments on the proposed rule did not identify how to overcome these obstacles. Thus, a presumption of U.S. origin standard is not a viable alternative.
A number of commenters suggested that USDA reduce the recordkeeping burden for the rule. In this interim final rule, the recordkeeping retention period for retailers is reduced from 7 days following the retail sale of the product to the length of time the product is on hand. In addition, the overall recordkeeping retention period for retailers and suppliers is reduced from 2 years to 1 year.
The interim final rule also “streamlines” the required recordkeeping for items that are pre-labeled (
The interim final rule changes the definition of a processed food item such that a greater number of products are now exempt from country of origin labeling requirements. The fewer the number of products that must be labeled, the lower are implementation and maintenance costs for many affected entities.
As in the PRIA, the baseline for this analysis is the present state of the affected industries absent mandatory COOL. USDA recognizes that some affected firms have already begun to implement changes in their operations to accommodate the law and the expected requirements of this interim final rule.
A number of commenters pointed to recent food safety incidents, suggesting that mandatory COOL would provide food safety benefits to consumers. As discussed in the PRIA, mandatory COOL does not address food safety issues. Appropriate preventative measures and effective mechanisms to recall products in the event of contamination incidents are more comprehensive means of protecting the health of the entire consuming public regardless of the form in which a product is consumed or where it is purchased. In addition, foods imported into the U.S. must meet food safety standards equivalent to those required of products produced domestically.
Details of the data, sources, and methods underlying the cost estimates are provided in the PRIA. This section provides the interim final cost estimates and describes revisions made to the PRIA.
In the PRIA, we developed a range of estimated implementation costs to reflect the likely range of first-year costs for directly affected firms to comply with the proposed rule. The lower range of incremental cost estimates reflected the costs to modify and maintain current recordkeeping systems, while the upper range of estimates reflected other capital and operational costs to comply with the proposed rule. We concluded in the PRIA that costs likely would fall in the middle to upper end of the range of estimated costs. Taking into account comments received on the proposed rule and the PRIA, this interim final regulatory impact assessment presents only a single set of estimates for anticipated costs. Comments representing affected entities clearly described that compliance with the rule would require changes beyond recordkeeping alone. Thus, the revised incremental cost estimates reflect not only additional recordkeeping costs, but also additional payments by the directly affected firms for capital, labor, and other expenses that will be incurred as a result of operational changes to comply with the rule.
First-year incremental costs for directly affected firms are estimated at $89 million. The large change relative to the estimate of $3.9 billion for the proposed rule is attributable to the fact that this interim final rule covers only fish and shellfish. Costs per firm are estimated at $241 for fish and shellfish harvesters and producers, $1,890 for intermediaries (such as handlers, importers, processors, and wholesalers), and $12,600 for retailers.
To estimate the overall impacts of the higher costs of production resulting from the interim final rule, we used a model of the entire U.S. economy. We adjusted the model by imposing the estimated implementation costs on the directly impacted segments of the economy in a computable general equilibrium model developed by the Economic Research Service (ERS). The model estimates changes in prices, production, exports, and imports as the directly impacted industries adjust to higher costs of production over the longer run (namely, 10 years). Because the model covers the whole U.S. economy, it also estimates how other segments of the economy adjust to changes emanating from the directly affected segments and the resulting change in overall productivity of the economy.
This general equilibrium analysis is developed from the standpoint that only farm-raised and wild fish and shellfish products will be directly affected by the interim final rule. Implementation and economic costs for the other covered commodities are not included in this analysis. Thus, this analysis illustrates the relative scale of the overall impacts of this rule on the U.S. economy, but does not represent the impacts of mandatory COOL requirements for all covered commodities.
Note that a general equilibrium analysis differs from a partial equilibrium analysis in that a partial equilibrium analysis would examine the effects of the mandatory COOL on consumers and producers of fish and shellfish. The general equilibrium approach is a more encompassing analytic approach. However, the gains and losses to consumers and producers of fish and shellfish are not identified separately from the rest of the economy.
Annual costs to the U.S. economy in terms of reduced purchasing power resulting from a loss in productivity after a 10-year period of adjustment are estimated at $6.2 million. Domestic production of fish and shellfish at the producer and retail levels is estimated to be lower and prices to be higher. U.S. exports of fish and shellfish are estimated to decrease, while U.S. imports of fish and shellfish are estimated to increase.
The findings indicate that directly affected industries recover the higher costs imposed by the rule through slightly higher prices for their products. With higher prices, the quantities of their products demanded also decline. Consumers pay slightly more for the products and purchase less fish and shellfish. Overall, however, the fish and shellfish account for a small portion of the U.S. economy and of consumers' budgets. Thus, the “deadweight” economic burden of the rule is considerably smaller than the incremental costs to directly affected firms.
Estimated impacts of this interim final rule are subject to uncertainties inherent in this type of prospective economic analysis. Firms directly affected by this interim final rule differ considerably in size and in their operational characteristics. Actual impacts on individual firms and on the overall economy resulting from the interim final rule may vary from the average estimated impacts presented herein.
The remainder of this section describes in greater detail how we developed the estimated direct, incremental costs and the overall costs to the U.S. economy.
In contrast to the PRIA, the beef, pork, lamb, perishable agricultural commodity and peanut sectors are no longer directly affected by this interim final rule. Thus, entities in these sectors are removed from the estimated number of affected entities. In addition, the numbers of affected entities in the seafood processing industry are lowered. Canned seafood products would have required labeling under the proposed rule, but are exempt under the interim final rule because of the revised definition of a processed food item. While there may be fishing operations that harvest fish destined exclusively for canning, data on the number of such operations are unavailable. In addition, fishing vessels that target a particular species destined for canning often have a by-catch of other species that would be destined for fresh or frozen end uses. Thus, we believe that keeping the estimated number affected fishing operations unchanged is a reasonable assumption. In the PRIA, the seafood product preparation and packing industry included fresh and frozen seafood processing and seafood canning. Because the interim final rule exempts canned seafood products, the number of affected seafood processing firms is reduced from 741 to 582 and the number of establishments from 823 to 653. We assume that all of these remaining fresh and frozen seafood processing firms prepare at least some covered commodities, although there may be some firms that prepare fish and shellfish exclusively into items that would be exempt from this rule under the definition of a processed food item. For example, a firm that produces only breaded shrimp would not be subject to the requirements of this interim final rule.
We assume that all firms and establishments identified in Table 1 will be impacted by the rule, although some may not produce or sell products ultimately within the scope of the rule. While this assumption likely overstates the number of affected firms and establishments, we believe that the assumption is reasonable. Detailed data are not available on the number of entities categorized by the marketing channels in which they operate and the specific products that they sell.
Prior to reaching retailers, most covered fish and shellfish products move through distribution centers or warehouses. Direct store deliveries are an exception. Distribution centers will be required to provide retailers with
Processors of covered fish and shellfish products will also need to inform retailers and wholesalers as to the country of origin and method of production (wild and/or farm-raised) of the products that they sell. To do so, their suppliers will need to provide documentation regarding the country of origin and method of production (wild and/or farm-raised) of the products that they sell. Maintaining country of origin and method of production (wild and/or farm-raised) identity through the processing phase is more complex if products from more than one country or from more than one method of production are involved. For example, the identity of wild shrimp from the U.S. and farm-raised shrimp from Thailand entering the same processing facility would need to be maintained throughout the packing operation. The efficiency of operations may be affected if products are segregated in receiving, storage, processing, and shipping operations. For processors handling products from multiple origins, there may also be a need to separate shifts for processing products from different origins, or to split processing within shifts. In either case, costs are likely to increase. Records will need to be maintained to ensure that accurate country of origin and method of production (wild and/or farm-raised) information is retained throughout the process and to permit compliance and enforcement reviews.
Processors handling only domestic origin products or products from a single country of origin and a single method of production may have lower implementation costs compared with processors handling products from multiple origins and methods of production. A processor that already sources products from a single country would not face additional costs associated with product segregation and tracking, provided that the products also have the same method of production (wild or farm-raised). Procurement costs also may be unaffected in this case, if the processor is able to continue sourcing products from the same suppliers. Alternatively, a processor that currently sources products from multiple countries may choose to limit its source to a single country to avoid costs associated with product segregation and tracking. In this case, such cost avoidance would be partially offset by additional procurement costs to source supplies from a single country of origin. Additional procurement costs may include higher transportation costs due to longer shipping distances and higher acquisition costs due to supply and demand conditions for products from a particular country of origin, whether domestic or foreign, and having the same method of production, whether wild or farm-raised.
At the production level, fish producers and harvesters will need to create and maintain records to establish country of origin and method of production (wild and/or farm raised) information for the products they sell. Country of origin and method of production (wild and/or farm-raised) information will need to be transferred to the first handler of their products, and records sufficient to allow the source and method of production of the product to be traced back will need to be maintained as the products move through the supply chains. In general, additional producer and harvester costs include the cost of establishing and maintaining a recordkeeping system for country of origin and method of production (wild and/or farm-raised) information, product identification, and labor and training.
For fish producers, production is measured by round weight (live weight) pounds of fish, except mollusks, which excludes the weight of the shell. Wild caught fish and shellfish production is measured by U.S. domestic landings for fresh and frozen human food. The PRIA estimate inadvertently omitted landings of fish for canned human food, which would have required labeling under the proposed rule. Canned fish, however, is exempt from this interim final rule. We assume that fish harvesters generally know whether their catch is destined for fresh and frozen markets, canning, or industrial use. Fish production also includes farm-raised fish. Total estimated fish production is unchanged from the PRIA.
We assume that all sales by intermediaries such as handlers, packers, processors, wholesalers, and importers will be impacted by the rule. Although some product is destined exclusively for foodservice or other channels of distribution not subject to the interim final rule, we assume that these intermediaries will seek to keep their marketing options open for possible sales to subject retailers. Among other adjustments, fish and shellfish production at the intermediary level is reduced by 1.2 billion pounds from the PRIA estimate to account for the removal of canned fish and shellfish (Ref. 1).
Further adjustments to intermediary volume are made to remove other major categories of products exempt from labeling—fish sticks, fish portions, and breaded shrimp. Fish sticks and portions are shaped masses of cohering fish flesh, and are thus defined as a processed food item. The volume of affected fish production is computed separately from shellfish production. As shown in Table 2, U.S. disappearance of fresh and frozen fish is estimated at 1,617 million pounds in 2001 (Ref. 1), which includes imports but excludes exports. This figure is reduced by the estimated U.S. production of fish sticks and portions (232 million pounds, Ref. 2) and by imports of fish sticks (16 million pounds, Ref. 3), as these items would be exempt from the requirements of this rule. Exports of fish sticks (5 million pounds, Ref. 3) are added back to U.S. production to estimate net U.S. supplies of these exempt products (
PRIA estimates of the volume of affect product at the retail level are revised to reflect changes in the definition of a processed food item and to improve the accuracy of the estimates. First, estimated fish and shellfish retailer volume is reduced by 493 million pounds from the PRIA estimate to remove canned fish and shellfish (Ref. 1), which is exempt from the requirements of this rule under the revised definition of a processed food item. Second, revised factors are used to estimate the volume of product requiring labeling at retailers subject to this rule.
In the PRIA, food disappearance figures were multiplied by 0.414 to represent the estimated share of production sold through retailers covered by the proposed rule. To derive this share, the factor of 0.629 was used to remove the 37.1 percent food service quantity share of total food in 2002. This factor was then multiplied by 0.658, which was the share of sales by supermarkets, warehouse clubs and superstores of food for home consumption in 2002. In other words, we assumed supermarkets, warehouse clubs and superstores represent the retailers as defined by PACA, and these retailers were estimated to account for 65.8 percent of retail sales of the covered commodities.
Compared to other food products, greater proportions of fish and shellfish are eaten away from home, and smaller proportions are eaten at home. We estimate that 58 percent of fresh and frozen fish and 38 percent of shellfish are eaten at home. These proportions are based on estimated at-home and away-from-home the National Seafood Consumption Survey conducted by the National Marine Fisheries Service (Ref. 4). Based on these percentages, at-home consumption is estimated at 797 million pounds for covered fresh and frozen fish products and 435 million pounds for covered shellfish products (Table 2). Total at-home consumption of covered fresh and frozen shellfish products is estimated at 1.2 billion pounds. As in the PRIA, 65.8 percent of at-home consumption is estimated to be sold by retailers subject to this rule. As a result, the total volume of fresh and frozen fish and shellfish products affected by this rule is estimated to be 811 million pounds at retail. Total fish and shellfish volume at retail is thus reduced 891 million pounds from the PRIA estimate.
Table 3 summarizes the direct, incremental costs that we believe firms will incur during the first year as a result of this interim final rule. These estimates are derived primarily from the available studies that addressed cost impacts of mandatory COOL, coupled with our estimates of the volume of affected production at each level of the supply chain.
Assumptions and procedures underlying the cost estimates are described fully in the discussion of the upper range estimates presented in the PRIA. Changes from the PRIA estimates are highlighted herein.
As in the PRIA (68 FR 61952), we estimate costs to fish and shellfish producers at $0.0025 per pound. Total costs for fish and shellfish producers are thus estimated at $19 million,
Consistent with the PRIA (68 FR 61952), we adopt $0.005 per pound as an estimate of costs for intermediaries in the fish and shellfish sector. Processors will need to collect country of origin and method of production (wild and/or farm-raised) information from producers, maintain this information, and supply this information to other intermediaries or directly to retailers. In addition, there may need to be segregation of the product before and after processing to facilitate tracking of country of origin and method of production (wild and/or farm-raised) identity. There will also be labeling costs associated with providing country of origin and method of production (wild and/or farm-raised) information on consumer-ready packs of frozen and fresh fish that are labeled by processors. Total costs for fish and shellfish intermediaries are thus estimated at $13 million, a reduction of $8 million from the upper range PRIA estimate. The reduction is attributable to the lowered estimate of the volume of production affected by the rule.
As discussed in the PRIA (68 FR 61952), we adopt $0.07 per pound as an estimate of costs for retailers of fish and shellfish. This estimate results in total costs of $57 million for retailers of fish and shellfish, a reduction of $62 million from the PRIA upper range estimate. As with intermediaries, the reduction stems from the lowered estimate of the volume of production affected by the rule.
Total costs for fish and shellfish are estimated at $89 million, $70 million less than the PRIA upper range estimate.
We estimate total incremental costs for this interim final rule of $19 million for fish producers and harvesters, $13 million for intermediaries, and $57 million for retailers for the first year. Total incremental costs for all supply chain participants are estimated at $89 million for the first year. The large reduction from the PRIA upper range estimate of $3.9 billion is attributable to the fact that this interim final rule covers only wild and farm-raised fish and shellfish products. The proposed rule also covered beef, pork, lamb, fruits, vegetable, and peanuts.
There are wide differences in average estimated implementation costs for individual entities in different segments of the supply chain (Table 4). With the exception of a small number of fishing operations, producer operations are single-establishment firms. Thus, average estimated costs per firm and per establishment are the same after rounding to the nearest dollar. In contrast, retailers subject to the rule operate an average of just over eight establishments per firm. As a result, average estimated costs per retail firm also are just over eight times larger than average costs per establishment.
Average estimated implementation costs per fish and shellfish producer are relatively small at $241. Costs per fish operation are lowered slightly from the PRIA upper-range estimates due to a correction in the number of fishing operations used to calculate the average cost per operation (the estimated number of operations is unchanged from the PRIA). Estimated costs for intermediaries are substantially larger, averaging $1,890 per firm and $1,650 per establishment. The average cost per firm is much less than the PRIA upper range estimated cost, with the lower cost attributable to the sharp reduction in the volume of production subject to this interim final rule. Similarly, the average cost per intermediary establishment is considerably less than PRIA the upper range estimate. At an average of $12,600 retailers have the highest average estimated costs per firm. This is much less than the PRIA upper range estimate because of the reduction in the estimated volume of production subject to the interim final rule. Retailers also have the highest average estimated costs per establishment, $1,530.
The costs per firm and per establishment represent industry averages for aggregated segments of the supply chain. Large firms and establishments likely will incur higher costs relative to small operations due to the volume of commodities that they handle and the increased complexity of their operations. In addition, different types of businesses within each segment are likely to face different costs. Thus, the range of costs incurred by individual businesses within each segment is expected to be large, with some firms incurring only a fraction of the average costs and other firms incurring costs many times larger than the average.
We believe that the major cost drivers for the rule occur when covered commodities are transferred from one firm to another, when covered commodities are commingled in the production or marketing process, and when products are assembled and then redistributed to retail stores. In part, we believe that some requirements of the rule will be accomplished by firms using essentially the same processes and practices as are currently used, but with information on country of origin and method of production (wild and/or farm-raised) claims added to the processes. This adaptation generally would require relatively small marginal costs for recordkeeping and identification systems. In other cases, however, firms may need to revamp current operating processes to implement the rule. For example, a processing plant may need to sort incoming products by country of origin and method of production (wild and/or farm-raised) in addition to weight, size, color, or other quality factors. This may require adjustments to plant operations, line processing, product handling, and storage. Ultimately, we anticipate that a mix of solutions will be implemented by industry participants to effectively meet the requirements of the rule. Therefore, we anticipate that direct, incremental costs for the interim final rule likely will fall within a reasonable range of the estimated total of $89 million.
In the PRIA, one regulatory alternative considered by AMS would be to narrow the definition of a processed food item, thereby increasing the scope of commodities covered by the rule. This alternative is not adopted in this interim final rule. An increase in the number of commodities that would require COOL would increase implementation costs of the rule with little expected economic benefit. Additional labeling resulting from fewer exempted items may also slow some of the innovation that is occurring with various types of value-added, further processed products.
A converse regulatory alternative would be to broaden the definition of a processed food item, thereby decreasing the scope of commodities covered by the rule. Accordingly, such an alternative would decrease implementation costs for the rule. At the retail level and to a lesser extent at the intermediary level, cost reductions would be at least partly proportional to
The definition of a processed food item developed for this interim final rule has taken into account comments from potentially affected entities and has resulted in excluding products that would be more costly and troublesome for retailers and suppliers to provide country of origin and method of production (wild and/or farm-raised) information. Total incremental costs for this interim final rule are estimated at $70 million less than the upper range costs estimated in the PRIA for fish and shellfish because of the exemption of canned items under the revised definition of a processed food item.
Another alternative considered by AMS would be to require that suppliers provide an affidavit for each transaction to the immediate subsequent recipient certifying that the country of origin and method of production (wild and/or farm-raised) claims being made are truthful and that the required records are being maintained. We do not have an estimate of the number of transactions that would be impacted. Assuming, however, costs of just $0.001 per pound of product sold by producers and intermediaries, and assuming that commodities are transferred at least twice between intermediaries, costs for fish and shellfish would increase by nearly $13 million, or almost 15 percent, compared to the alternative of having no affidavits. Taking into consideration probable cost impacts, comments received on the proposed rule, and the structure and needs of the industry, we rejected this alternative.
With respect to assessing the effect of this rule on the economy as a whole, it is important to understand that a significant portion of the costs directly incurred by the affected entities take the form of expenditures for additional production inputs, such as payments to others whether for increased hours worked or for products and services provided. As such, these direct, incremental costs to affected entities do not represent losses to the economy but rather transfers of money from one economic agent to another. As a result, the direct costs incurred by the participants in the supply chains for the covered commodities do not measure the impact of this rule on the economy as a whole. Instead, the relevant measure is the extent to which the interim final rule reduces the amount of goods and services that can be produced throughout the U.S. economy from the available supply of inputs and resources.
Even from the perspective of the directly affected entities, the direct, incremental costs do not present the whole picture. Initially, the affected entities will have to bear the full cost of implementing the interim final rule. However, over time as the economy adjusts to the requirements of the interim final rule, the burden facing suppliers will be reduced as their production level and the prices they receive change. What is critical in assessing the effect of this rule on the affected entities over the longer run is to determine the extent to which the entities are able to pass these costs on to others and consequently how the demand for their commodities is affected.
Conceptually, suppose that all the increases in costs from this rule were passed on to consumers in the form of higher prices and that consumers continued to purchase the same quantity of the affected commodities from the same marketing channels. Under these conditions, the suppliers of these commodities would not suffer any net loss from the rule even if the increases in their operating costs were quite substantial. However, other industries might face losses as consumers may spend less on other commodities. It is unlikely, however, absent the rule leading to changes in consumers' preferences for the covered commodities, that consumers will maintain their consumption of the covered commodities in the face of increased prices. Rather, many or most consumers will likely reduce their consumption of the covered commodities. The resulting changes in consumption patterns will in turn lead to changes in production patterns and the allocation of inputs and resources throughout the economy. The net result, once all these changes have occurred, is that the total amount of goods and services produced by the U.S. economy will be less than before.
To analyze the effect of the changes resulting from the rule on the total amount of goods and services produced throughout the U.S. economy in a global context, we utilized a computable general equilibrium (CGE) model developed by ERS. In the PRIA, the ERS CGE model includes all the covered commodities and the products from which they are derived, as well as non-covered commodities that would be indirectly affected by the proposed rule, such as poultry and feed grains. For purposes of this interim final rule, the same model structure is used, but direct, incremental cost increases are assumed to occur for fish and shellfish products only.
The ERS CGE model traces the impacts from an economic “shock,” in this case an incremental increase in operating costs, through the U.S. agricultural sector and the U.S. economy to the rest of the world and back through the inter-linking of economic sectors. By taking into account the linkages among the various sectors of the U.S. and world economies, a comprehensive assessment can be made of the economic impact on the U.S. economy of the rule implementing COOL. The model reports resulting economic changes after a ten-year period of adjustment.
The results of this analysis indicate that the interim final rule implementing COOL after the economy has had a period of ten years to adjust will have a more limited impact on the overall U.S. economy than the direct costs for the first year, alone, would suggest. Under the assumption that COOL will not change consumers' preferences for the covered fish and shellfish commodities, we estimate that the overall costs to the U.S. economy of the interim final rule, in terms of a reduction in consumers' purchasing power, will be $6.2 million. This represents the cost to the U.S. economy after all transfers and adjustments in consumption and production patterns have occurred.
Overall costs to the U.S. economy after a decade of adjustment are significantly smaller than the first-year implementation costs to directly affected firms. This result does not imply that the implementation costs for directly affected firms have been substantially reduced from the initial estimates. While some of the increase in their costs will be offset by reduced production and higher prices over the longer term, the suppliers of the covered commodities will still bear direct implementation costs. Prior to full economic adjustment, economic impacts on directly affected firms in the short term are expected to be larger than impacts on the economy after adjustment has taken place.
Our estimates of the overall costs to the U.S. economy are based on our estimates of the incremental increases in operating costs to the affected firms. The model does not permit supply channels for covered commodities that require country of origin and method of production information to be separated from supply channels for the same commodities that do not require COOL. Thus, the direct cost impacts must be adjusted to accurately reflect changes in operating costs for all firms supplying covered commodities. Table 5 reports these adjusted estimates in terms of their percentage of total operating costs for each of the directly impacted sectors. The percentages used are based on our estimate of the percentage change in operating costs for the entire supply channel and are adjusted between the various segments of the fish and shellfish supply chain (harvesters and producers, processors, importers, and retailers) based on our estimate of how the costs of the regulation will be distributed among them. As a result, the cost changes shown in Table 5 only approximate the direct cost estimates previously described.
In addition, we assume that domestic and foreign suppliers of the affected commodities located at the same level or segment of the supply chain face the same percentage increases in their operating costs. In reality, imported covered commodities likely would enjoy some measure of competitive advantage as a portion of those products already enter the United States with country of origin labels. Labeling and country of origin notification necessary to satisfy existing U.S. Customs and Border Protection requirements could be used to implement the country of origin requirements of this rule, but importers also would need to provide method of production information (wild and/or farm-raised) for covered fish and shellfish commodities destined for retail.
The percentage changes in operating costs reported in Table 5 differ from the percentage changes in operating costs reported for the High Cost scenario as listed in Table 8 in the PRIA. The differences in percentage changes reported in the PRIA and those reported here are attributable to changes in implementation costs of the interim final rule as well as recalibration of our estimates of total operating costs for the various segments of the supply channels of the directly impacted sectors.
As discussed above, consumption and production patterns will change as the incremental increases in operating costs outlined above are passed on, at least partially, to consumers in the form of higher prices by the affected firms. The increases in the prices of the covered fish and shellfish commodities will in turn cause exports and domestic consumption and ultimately domestic production to fall.
The costs of the interim final rule will not be shared equally by all suppliers of the covered commodities. The distribution of the costs of the rule will be determined by several factors in addition to the direct costs of complying with the rule. These are the availability of substitute products not covered by the rule and the relative competitiveness of the affected suppliers with respect to other sectors of the U.S. and world economies.
Table 6 contains the percentage changes in prices, production, exports, and imports for the three main segments of the marketing chain for fish and shellfish. Results for potential substitute products are not shown in Table 6 because impacts of the interim final rule on these products are estimated to be minimal. Percentage changes in U.S. production, prices, exports, and imports of cattle and sheep, broilers, hogs, beef and lamb, chicken, and pork are estimated to be 0.001 percent or less. Because of the negligible impacts on these other commodities, Table 6 shows results for fish and shellfish only.
The rule increases operating costs for the supply chains for the covered fish and shellfish commodities. As shown in Table 6, the increased costs result in higher prices for these products. The quantity demanded at these higher prices falls, with the result that the U.S. production of fish and shellfish decreases.
Demand for U.S. fish production is particularly sensitive to increases in prices in the model, suggesting that U.S. fish suppliers face a degree of competitive disadvantage relative to their foreign counterparts. As a result, fish imports increase as a result of the estimated cost increases, while U.S. production falls. Evidently, U.S. domestic suppliers of fish respond more to changes in their operating costs than do foreign suppliers. The resulting gap between the supply response of U.S. and foreign producers provides foreign suppliers of fish with a competitive advantage in U.S. markets that enables them to increase their exports to the U.S. even though they face similar increases in operating costs.
To put these impacts in more meaningful terms, the percentage changes reported in Table 6 were converted into changes in current prices and quantities produced, imported, and exported (Table 7). The base values in Table 7 differ from those reported in
U.S. prices for covered fish and shellfish commodities increase by a very small amount, less than two-tenths of a cent per pound. U.S. production declines by 47 million pounds. The estimated changes in prices and production cause revenues for the fish industry to fall by $4 million. The increase in the price of the affected fish and shellfish commodities cause exports to decline by about 14 million pounds. Imports of fish and shellfish increase and as costs imposed on importers are relatively less than those imposed on domestic producers.
The ERS CGE model assumes that firms behave as though they have no influence on either their input or output prices. On the other hand, for example, a model that assumed that processors could influence their input and output prices could find that prices received by agricultural producers decreased because processors passed their cost increases down to their suppliers rather than increase the price they charged their customers.
The estimates of the economic impact of the interim final rule on the United States are based on the assumption that country of origin and method of production (wild and/or farm-raised) labeling does not shift consumer demand toward the covered fish and shellfish commodities of U.S. origin. This assumption is based on the earlier finding that there was no compelling evidence to support the view that mandatory COOL will increase the demand for U.S. products. An increase in the demand for commodities of U.S. origin increase would have to occur to offset the costs imposed on the economy by the interim final rule.
As previously mentioned, our estimates of the overall economic effects of the interim final rule are derived from a CGE model developed by ERS. The results from this model show the changes in production and consumption patterns after the economy has adjusted to the incremental increase in costs (medium run results). In reality, such changes occur over time and the economy does not adjust instantaneously.
The results of this analysis describe and compare the old production and consumption patterns to the new ones, but do not reflect any particular adjustment process. In addition, these results assume that the only changes that are occurring in the agriculture sector or the economy as a whole are those that are driven by COOL. The purpose of using the ERS CGE model is not to forecast what prices and production will be over any particular time frame, but to explore the implications of COOL on the U.S. economy and capture the direction of the changes.
The ERS CGE model is global in the sense that all regions in the world are covered. Production and consumption decisions in each region are determined within the model following behavior that is consistent with economic theory. Multilateral trade flows and prices are determined simultaneously by world market clearing conditions. This permits prices to adjust to ensure that total demand equals total supply for each commodity in the world.
The general equilibrium feature of the model means that all economic sectors—agricultural and non-agricultural—are included. Hence, resources can move among sectors, thereby ensuring that adjustments in the feed grains and livestock sectors, for example, are consistent with adjustments in the processed sectors.
The model is static and this implies that gains (or losses) from stimulating (or inhibiting) investment and productivity growth are not captured. The model allows the existing resources to move among sectors, thereby capturing the effects of re-allocation of resources that results due to policy changes. However, because the model fixes total available resources it underestimates the long-run effects of policies on aggregate output.
This interim final rule has been reviewed under the requirements of the Regulatory Flexibility Act (RFA)(5 U.S.C. 601
The interim final rule is the direct result of statutory obligations to implement the COOL provisions of the Farm Bill, which amended the Act by adding Subtitle D—Country of Origin Labeling. The COOL provisions of the Farm Bill require covered fish and shellfish commodities to be labeled beginning September 30, 2004. The intent of this law is to provide consumers with additional information on which to base their purchasing decisions. Specifically, the law imposes additional Federal labeling requirements for covered commodities sold by retailers subject to the law. Covered commodities included in this interim final rule are farm-raised fish and shellfish and wild fish and shellfish.
Under preexisting Federal laws and regulations, COOL is not universally required for the commodities covered by this rule. In particular, labeling of U.S.
Many aspects of the mandatory COOL provisions are prescriptive and provide little regulatory discretion in rulemaking. The law requires a statutorily defined set of food retailers to label the country of origin and method of production (wild and/or farm-raised) of covered commodities. The law also prohibits USDA from using a mandatory identification system to verify the country of origin of covered commodities. However, the interim final rule provides flexibility in allowing market participants to decide how best to implement mandatory COOL in their operations. Market participants other than those retailers defined by the statute may decide to sell products through marketing channels not subject to the rule. Taking into account comments received on the proposed rule, the interim final rule decreases the length of time that records are required to be kept, providing some relief to affected entities both large and small. A complete discussion of the information collection and recordkeeping requirements and associated burdens appears in the Paperwork Reduction Act section below. In addition, the number of products required to be labeled is reduced because the definition of a processed food item has been broadened, thus providing additional regulatory relief.
The objective of the interim final rule is to regulate the activities of retailers (as defined by the law) and their suppliers so that retailers will be able to fulfill their statutory obligations. The interim final rule requires retailers to provide country of origin and method of production (wild and/or farm-raised) information for all of the covered fish and shellfish commodities that they sell. It also requires all firms that supply covered commodities to these retailers to provide the retailers with the information needed to correctly label the covered commodities. In addition, all other firms in the supply chain for the covered commodities are potentially affected by the rule because country of origin and method of production (wild and/or farm-raised) information will need to be maintained and transferred along the entire supply chain. In general, the supply chains for the covered fish and shellfish commodities consist of farms, fishing operations, processors, wholesalers, and retailers. A listing of the number of entities in the supply chains for the covered fish and shellfish commodities can be found in Table 1 above in the Interim Final Regulatory Impact Analysis (IFRIA).
Retailers covered by this interim final rule must meet the definition of a retailer as defined by PACA. The PACA definition includes only those retailers handling fresh and frozen fruits and vegetables with an invoice value of at least $230,000 annually. Therefore, the number of retailers impacted by this rule is considerably smaller than the total number of retailers nationwide. In addition, there is no requirement that firms in the supply chain must supply their products to retailers subject to the interim final rule.
Because country of origin and method of production (wild and/or farm-raised) information will have to be passed along the supply chain and made available to consumers at the retail level, we assume that each participant in the supply chain as identified in Table 1 will likely encounter recordkeeping costs as well as changes or modifications to their business practices. Absent more detailed information about each of the entities within each of the marketing channels, we assume that all such entities will be affected to some extent even though some fish and shellfish harvesters, producers and suppliers may choose to market their products through channels not subject to the requirements of this interim final rule. Therefore, we estimate that nearly 125,000 establishments owned by approximately 91,000 firms will be either directly or indirectly impacted by this rule. Changes from the PRIA are reductions in the numbers of affected firms and establishments due to the exclusion of covered commodities other than wild and farm-raised fish and shellfish in this interim final rule.
This interim final rule potentially will have an impact on all participants in the supply chain, although the nature and extent of the impact will depend on the participant's function within the marketing chain. The rule likely will have the greatest impact on retailers and intermediaries (handlers, processors, wholesalers, and importers), while the impact on individual fish and shellfish harvesters and producers is likely to be relatively small.
As shown in Table 3 and discussed in the Costs section of the IFRIA, we estimate direct incremental costs for the interim final rule at approximately $89 million. The decrease in the direct incremental cost in the interim final rule as compared to the proposed rule is the result of excluding commodities other than fish and shellfish from this interim final rule. In addition, broadening the definition of a processed food item exempts items such as canned fish and shellfish, fish sticks, and breaded shrimp from the labeling requirements of the rule.
There are two measures used by the Small Business Administration (SBA) to identify businesses as small: Sales receipts or number of employees. In terms of sales, SBA classifies as small those grocery stores with less than $23 million in annual sales and specialty food stores with less than $6 million in annual sales (13 CFR 121.201). Warehouse clubs and superstores with less than $23 million in annual sales are also defined as small. SBA defines as small those agricultural producers with less than $750,000 in annual sales and fishing operations with less than $3.5 million in annual sales. Of the other businesses potentially impacted by the interim final rule, SBA classifies as small those manufacturing firms with less than 500 employees and wholesalers with less than 100 employees.
Retailers covered by this interim final rule must meet the definition of a retailer as defined by PACA. The number of such businesses is estimated from PACA data (Ref. 7). A PACA license is required for all retailers having an invoice cost of fresh and frozen fruits and vegetables exceeding $230,000 in a calendar year. Licensee data is entered and maintained in USDA's PACA database. Among other required information, the PACA license application includes the name of the business and the number of branches where the business handles fruits and vegetables. In the case of retailers, most branch locations represent retail stores. There is an active USDA compliance program to ensure compliance with licensing requirements, and the industry is monitored to keep the licensing data current when there are changes in firms' operations (such as the opening of new
Because the PACA definition of a retailer includes only those retailers handling fresh and frozen fruits and vegetables with an invoice value of at least $230,000 annually, the number of retailers impacted by this rule is considerably smaller than the number of food retailers nationwide. USDA data indicate that there are 4,512 retail firms as defined by PACA that would thus be subject to the interim final rule. As explained below, most small food store firms have been excluded from mandatory COOL based on the PACA definition of a retailer.
The 1997 Economic Census data provide information on the number of food store firms by sales categories. Of the 67,916 food store, warehouse club, and superstore firms, we estimate that there are 66,868 firms with annual sales meeting the SBA definition of a small firm and 1,048 other firms. USDA has no information on the identities of these firms, and the PACA database does not identify firms by North American Industry Classification System code that would enable matching with Economic Census data. USDA assumes, however, that all or nearly all of the 1,048 large firms would meet the definition of a PACA retailer because most of these larger food retailers likely would handle fresh and frozen fruits and vegetables with an invoice value of at least $230,000 annually. Thus, we estimate that 77 percent (3,464 out of 4,512) of the retailers subject to the interim final rule are small. However, this is only 5.2 percent of the estimated total number of small food store retailers. In other words, an estimated 94.8 percent of small food store retailers would not be subject to the requirements of this interim final rule.
As discussed in the Costs section of the IFRIA, we estimate retailer costs under this interim final rule at approximately $57 million (Table 3). Costs are estimated at $12,600 per retail firm and $1,530 per retail establishment (Table 4). These estimated costs are lower than the PRIA upper range estimates because of the exclusion of commodities other than fish and shellfish from this interim final rule and because of the exemption of additional products under the revised definition of a processed food item.
Retailers will face recordkeeping costs, costs associated with supplying country of origin and method of production (wild and/or farm-raised) information to consumers, costs associated with segmenting products by country of origin and method of production (wild or farm-raised), and possibly additional handling costs. These cost increases may result in changes to retailer business practices, such as additional time devoted to labeling and signage needed to provide required information for products sold from in-store seafood department operations. The interim final rule does not specify the systems that affected retailers must put in place to implement mandatory COOL. Instead, retailers will be given flexibility to develop their own systems to comply with this rule. There are many ways in which the interim final rule's requirements may be met and firms will likely choose the least cost method in their particular situation to comply with the interim final rule.
The 2000 Statistics of U.S. Businesses (Ref. 8) provides information on wholesalers by employment size. For fish and seafood wholesalers there are a total of 2,897 firms. Of these, 2,837 firms have less than 100 employees. Therefore, approximately 98 percent of the fish and seafood wholesalers could be considered as small firms.
In addition to specialty wholesalers that primarily handle a single covered commodity, there are also general-line wholesalers that handle a wide range of products. For purposes of this analysis, we assume that these general-line wholesalers handle at least some of the covered fish and shellfish commodities. Therefore, we include the number of general-line wholesale businesses among entities affected by the interim final rule. The 2000 Statistics of U.S. Businesses provides information on general-line grocery wholesalers by employment size. There were 3,183 firms in total, and 2,983 firms had less than 100 employees. This results in approximately 94 percent of the general-line grocery wholesalers being classified as small businesses.
In general, 5,820 of 6,080 or 96 percent of the wholesalers are classified as small businesses. This indicates that most of the wholesalers impacted by this interim final rule may be considered as small entities as defined by SBA.
As discussed in the Costs section of the IFRIA, we estimate that intermediaries (importers and domestic wholesalers, handlers, and processors) will incur costs under the interim final rule of approximately $13 million (Table 3). Costs are estimated at $1,890 per intermediary firm and $1,650 per establishment (Table 4). These costs are lower than the upper range costs estimated in the PRIA because of the omission of commodities other than fish and shellfish from this interim final rule and because of the revised definition of a processed food item.
Wholesalers will encounter increased costs in complying with this interim final rule. Wholesalers will likely face increased recordkeeping costs, costs associated with supplying country of origin and method of production (wild and/or farm-raised) information to retailers, costs associated with segmenting products by country of origin and method of production (wild or farm-raised), and possibly additional handling costs. Some of the comments received from wholesalers and retailers on the proposed rule and voluntary guidelines indicated that retailers may choose to source covered commodities from a single supplier that procures the covered commodity from only one country in an attempt to minimize the costs associated with complying with mandatory COOL. In the case of fish and shellfish, this type of change in procurement practices could extend to sourcing products having only one method of production (wild or farm-raised). These changes in business practices could lead to the further consolidation of firms in the wholesaling sector. The interim final rule does not specify the systems that affected wholesalers must put in place to implement mandatory COOL. Instead, wholesalers will be given flexibility to develop their own systems to comply with the interim final rule. There are many ways in which the rule's requirements may be met. In addition, wholesalers have the option of supplying covered commodities to retailers or other suppliers that are not covered by the interim final rule.
The 2000 Statistics of U.S. Businesses (Ref. 8) provides information on manufacturers by employment size. For seafood product preparation and packaging there is a total of 741 firms. Of these, 714 have less than 500 employees and thus, 96 percent are considered to be small firms. This indicates that most of the manufacturers of covered commodities impacted by the interim final rule would be considered as small entities as defined by SBA.
Manufacturers are included as intermediaries and additional costs for these firms are discussed in the previous section addressing wholesalers. Manufacturers of covered commodities will encounter increased costs in complying with this interim final rule. Like wholesalers, manufacturers will likely face increased recordkeeping costs, costs associated with supplying country of origin and method of production (wild and/or farm-raised) information to retailers, costs associated with segmenting products by country of origin and method of production, and possibly additional handling costs. Some of the comments received from manufacturers on the proposed rule and the voluntary guidelines indicated that they may limit the number of sources from which they procure raw products. These changes in business practices could lead to decreased operational efficiency and the further consolidation of firms in the manufacturing sector. The interim final rule does not specify the systems that affected manufacturers must put in place to implement mandatory COOL. Instead, manufacturers will be given flexibility to develop their own systems to comply with the rule. There are many ways in which the interim final rule's requirements may be met.
SBA defines a small agricultural producer as having annual receipts less than $750,000. Based on 1998 Census of Aquaculture data (Ref. 9), we estimate that at least 90 percent of the 3,540 fish and shellfish farming operations are small. The manner in which the data are reported, however, does not allow the precise number of small producers to be calculated. Similar information on the size of fishing operations is not known to exist. However, it is assumed that the majority of these producers would be considered small businesses. We estimate that there are 76,499 firms engaged in fishing (Refs. 8 and 10).
At the production level, fish and shellfish producers and harvesters will need to create, if necessary, and maintain records to establish country of origin and method of production (wild and/or farm-raised) information for the products they sell. This information will need to be conveyed as the products move through the supply chains. In general, additional producer costs include the cost of establishing and maintaining a recordkeeping system for the country of origin and method of production (wild and/or farm-raised) information, product identification, and labor and training. Based on our knowledge of the affected industries as well as comments received on the proposed rule and the voluntary guidelines, we believe that producers and harvesters already have much of the information available that could be used to substantiate country of origin and method of production (wild and/or farm-raised) claims.
The costs for producers and harvesters are expected to be relatively limited and should not have a larger impact on small producers than large producers. As discussed in the Costs section of the IFRIA, producer costs are estimated at $19 million (Table 3), or an estimated $241 per firm (Table 4). In the case of producers, the firm and the establishment are considered as one and the same, with the exception of a small number of fishing operations. Thus, costs per firm and per establishment are the same after rounding to the nearest dollar.
Even if only domestic origin products or products from a single country of origin are handled, there may be additional procurement costs to source supplies from a single country of origin. In the case of fish and shellfish, such “single-sourcing” of products extends to method of production (wild or farm-raised) in addition to country of origin. Additional procurement costs may include higher transportation costs due to longer shipping distances and higher acquisition costs due to supply and demand conditions for products from a particular country of origin, whether domestic or foreign, and with a particular method of production (wild or farm-raised).
These additional costs may result in a number of consolidations within the processor, manufacturer, and wholesaler sectors for these covered fish and shellfish commodities. Also, to comply with the interim final rule, retailers may seek to limit the number of entities from which they purchase covered commodities as a means to simplify recordkeeping and labeling tasks.
The law also requires that any person supplying a covered commodity to a retailer provide information to the retailer indicating the country of origin and, in the case of fish and shellfish products, method of production (wild and/or farm-raised) of the covered commodity. Again, the law provides no discretion regarding this requirement for suppliers of covered commodities to provide information to retailers.
The interim final rule has no mandatory requirement, however, for any firm other than statutorily defined retailers to make country of origin and method of production (wild and/or farm-raised) claims. In other words, no
The effective date of this regulation is six months following the date of publication of this interim final rule. The country of origin statute provides that “not later than September 30, 2004, the Secretary shall promulgate such regulations as are necessary to implement this subtitle.” Many of the covered commodities sold at retail are in a frozen or otherwise preserved state (
The interim final rule does not dictate systems that firms will need to put in place to implement the requirements of the rule. Thus, different segments of the affected industries will be able to develop their own least-cost systems to implement COOL requirements. For example, one firm may depend primarily on manual identification and paper recordkeeping systems, while another may adopt automated identification and electronic recordkeeping systems.
The interim final rule has no requirements for firms to report to USDA. Compliance audits will be conducted at firms' places of business. As stated previously, required records may be kept by firms in the manner most suitable to their operations and may be hardcopy documents, electronic records, or a combination of both. In addition, the interim final rule provides flexibility regarding where records may be kept. If the product is pre-labeled with the necessary country of origin and method of production (wild and/or farm-raised) information, records documenting the immediate previous source and immediate subsequent recipient are sufficient as long as the source of the claim can be tracked and verified. Such flexibility should reduce costs for small entities to comply with the interim final rule.
In effect, the interim final rule is a performance standard rather than a design standard. The interim final rule requires that covered fish and shellfish commodities at subject retailers be labeled with country of origin and method of production (wild and/or farm-raised) information, that suppliers of covered commodities provide such information to retailers, and that retailers and their suppliers maintain records and information sufficient to verify all country of origin and method of production claims. The interim final rule provides flexibility regarding the manner in which the required information may be provided by retailers to consumers. The interim final rule provides flexibility in the manner in which required country of origin and method of production (wild and/or farm-raised) information is provided by suppliers to retailers, and in the manner in which records and information are maintained to substantiate country of origin and method of production claims. Thus, the interim final rule provides the maximum flexibility practicable to enable small entities to minimize the costs of the interim final rule on their operations.
Pursuant to PRA (44 U.S.C. 3501-3520) the information collection provisions contained in this interim final rule have not yet been approved by OMB and will not take effect until such approval is received. The Comments and Responses section lists the comments received on the preliminary PRA analysis and provides the Agency's responses to the comments. A description of these provisions is given below with an estimate of the annual recordkeeping burden.
Title: Recordkeeping and Records Access Requirements for Producers and Food Facilities.
In general, the supply chain for the covered fish and shellfish commodities includes fish and shellfish producers and harvesters, processors, wholesalers, importers, and retailers. Imported products may be introduced at any level of the supply chain. Other intermediaries, such as markets, may be involved in transferring products from one stage of production to the next. We estimate that the interim final rule's paperwork burden will be incurred by the number and types of firms and establishments listed in Table 8.
The impacted firms and establishments will broadly incur two types of costs. First, firms will incur initial or start-up costs to comply with the interim final rule. We assume that initial costs will be borne by each firm, even though a single firm may operate more than one establishment. Second, enterprises will incur additional recordkeeping costs associated with storing and maintaining records on an ongoing basis. We assume that these activities will take place in each establishment operated by each affected business.
Compared to the proposed rule, this interim final rule reduces the length of time that records must be kept and revises the recordkeeping requirements for pre-labeled products. Any person engaged in the business of supplying a covered commodity to a retailer, whether directly or indirectly, must maintain records to establish and identify the immediate previous source and immediate subsequent recipient of a covered commodity, in such a way that identifies the product unique to that transaction by means of a lot number of other unique identifier, for a period of 1 year from the date of the transaction. Under the proposed rule, records would have been required to be kept for 2 years. For retailers, this interim final rule requires records and other documentary evidence relied upon at the point of sale by the retailer to establish a product's country of origin and method of production, to be available to any duly authorized representatives of USDA for as long as the product is on hand. Under the proposed rule, retailers would have to have maintained these records for 7 days following the sale of the product. For pre-labeled products, the interim final rule provides that the label itself is sufficient evidence on which the retailer may rely to establish a product's origin and method of production (wild and/or farm-raised). The proposed rule would not have provided for this method of substantiation. Under the interim final rule, records that identify the supplier, the product unique to that transaction by means of a lot number or other unique identifier, and for products that are not pre-labeled, the country of origin and the method of production (wild and/or farm-raised) information must be
With respect to initial recordkeeping costs, we believe that most fish and shellfish harvesters and producers currently maintain many of the types of records that would be needed to substantiate country of origin and method of production (wild and/or farm-raised) claims. However, harvesters and producers are not typically required to pass along country of origin and method of production (wild or farm-raised) information to subsequent purchasers. Therefore, harvesters and producers will incur some additional incremental costs to record, maintain, and transfer country of origin and method of production (wild or farm-raised) information to substantiate required claims made at retail. Because much of the necessary recordkeeping is already developed during typical fishing and aquaculture operations, we estimate that the incremental costs for harvesters and producers to supplement existing records with country of origin and method of production (wild or farm-raised) information will be relatively small per firm. Examples of initial or start-up costs would be any additional recordkeeping burden needed to record the required country of origin and method of production (wild or farm-raised) information and transfer this information to handlers, processors, wholesalers, or retailers.
We estimate that producers will need 4 hours to establish a system for organizing records to carryout the purposes of these regulations. This additional time would be required to modify existing recordkeeping systems to incorporate any added information needed to substantiate country of origin claims. Although not all fish and shellfish products ultimately will be sold at retail establishments covered by this interim final rule, we assume that virtually all producers will wish to keep their marketing options as flexible as possible. Thus, we assume that all harvesters and producers of covered fish and shellfish commodities will establish recordkeeping systems sufficient to substantiate country of origin and method of production claims. We also recognize that some operations will require substantially more than 4 hours to establish their recordkeeping systems. Overall, we believe that 4 hours represents a reasonable estimate of the average additional time that will be required across all types of harvesters and producers.
In estimating initial recordkeeping costs, we used 2001 wage rates and benefits published by the Bureau of Labor statistics from the National Compensation Survey. Subsequently, the National Compensation Survey has been updated and 2002 wage rates and benefits are now available. These updated wage rates and benefits are used in estimating the interim final recordkeeping costs and results in an increase in the estimated costs.
For harvesters and producers, we assume that the added work needed to initially set up a recordkeeping system for country of origin and method of production (wild or farm-raised) information is primarily a bookkeeping task. This task may be performed by independent bookkeepers, or in the case of operations that perform their own bookkeeping, will require equivalent skills. The Bureau of Labor Statistics (BLS) (Ref. 11) publishes wage rates for bookkeepers, accounting, and auditing clerks. We assume that this wage rate represents the cost for producers to hire an independent bookkeeper. In the case of producers who currently perform their own bookkeeping, we assume that this wage rate represents the opportunity cost of the producers' time for performing these tasks. The July 2002 wage rate, the most recent data available, is estimated at $13.62 per hour. For this analysis, an additional 27.5 percent is added to the wage rate to account for total benefits which includes social security, unemployment insurance, workers compensation, etc. The estimate of this additional cost to employers is published by the BLS (Ref. 11). At 4 hours per firm and a cost of $17.37 per hour, initial recordkeeping costs to harvesters and producers are estimated at approximately $5.6 million to modify existing recordkeeping systems in order to substantiate country of origin and method of production (wild or farm-raised) claims.
The recordkeeping burden on handlers, processors, wholesalers, and retailers is expected to be more complex than the burden most producers face. These operations will need to maintain country of origin and method of production (wild and/or farm-raised) information on the covered commodities purchased and subsequently furnish that information to the next participant in the supply chain. This will require adding additional information to a firm's bills of lading, invoices, or other records associated with movement of covered commodities from purchase to sale. Similar to harvesters and producers, however, we believe that most of these operations already maintain many of the types of necessary records in their existing systems. Thus, we assume that country of origin and method of production (wild and/or farm-raised) information will require only modification of existing recordkeeping systems rather than development of entirely new systems.
The Label Cost Model Developed for FDA by RTI International (Refs. 12 and 13) is used to estimate the cost of including additional country of origin and method of production (wild and/or farm-raised) information to an operation's records. We assume a limited information, one-color redesign of a paper document will be sufficient to comply with the interim final rule's recordkeeping requirements. The number of hours required to complete the redesign is estimated to be 29 with an estimated cost at $1,309 per firm. While the cost will be much higher for some firms and lower for others, we believe that $1,309 represents a reasonable estimate of average cost for all firms. We thus estimate that the initial recordkeeping costs to intermediaries such as handlers, processors, and wholesalers (importers are included with wholesalers) will be approximately $8.7 million, and initial recordkeeping costs at retail will be approximately $5.9 million. The initial recordkeeping cost to intermediaries declines from the initial recordkeeping cost estimate in the proposed rule due to the reduction in the number of affected intermediaries associated with commodities other than fish and shellfish. The total initial recordkeeping costs for all firms are thus estimated at approximately $20 million.
In addition to these one-time costs to establish recordkeeping systems, enterprises will incur additional recordkeeping costs associated with storing and maintaining records. These costs are referred to as maintenance costs in Table 8. Again, the marginal cost for harvesters and producers to maintain and store any additional information needed to substantiate country of origin and method of production (wild or farm-raised) claims is expected to be relatively small.
For wild fish harvesters, country of origin and method of production (wild) generally is established at the time that the product is harvested, and thus there is no need to track country of origin and method of production information throughout the production lifecycle of the product. This group of producers is estimated to require an additional 4 hours a year, or 1 hour per quarter, to maintain country of origin and method
Compared to wild fish harvesters, we expect that fish farmers will incur higher costs to maintain country of origin and method of production (farm-raised) information. Wild fish are generally harvested once and then shipped by the producer to the first handler. In contrast, farm-raised fish and shellfish can and often do move through several geographically dispersed operations prior to final sale for processing. Fish and shellfish may be acquired from other countries by U.S. producers, complicating the task of tracking country of origin and method of production information. Because farmed fish and shellfish may change ownership several times prior to harvest, will need to be maintained to substantiate country of origin information as the animals move through their lifecycle. Thus, we expect that the recordkeeping burden for fish and shellfish farmers will be higher than it will be for harvesters of wild fish and shellfish. We estimate that these producers will require an additional 12 hours a year, or 1 hour per month, to maintain country of origin and method of production records. Again, this is an average for all enterprises. Some will require substantially more time, while others will require little additional time to maintain country of origin and method of production information.
We assume that farm labor will primarily be responsible for maintaining country of origin information at producers' enterprises. NASS data (Ref. 14) are used to estimate average farm wage rates—$8.62 per hour for livestock workers. (Wage rates for fish workers were unavailable, so the average wage rate for livestock workers is used.) Applying the rate of 27.5 percent to account for benefits results in an hourly rate of $10.99 for livestock workers. Assuming 12 hours of labor per year for farmed fish operations results in estimated annual maintenance costs to producers of $467,000 which is slightly higher than the estimated maintenance costs in the proposed rule for this group of producers. The increase in the estimated maintenance cost is due to the higher estimated benefits.
We expect that intermediaries such as handlers, processors, and wholesalers will face higher costs per enterprise to maintain country of origin and method of production (wild and/or farm-raised) information compared to costs faced by producers. Much of the added cost is attributed to the larger average size of these enterprises compared to the average producer enterprise. In addition, these intermediaries will need to track products both coming into and going out of their businesses.
We estimate the maintenance burden hours for country of origin and method of production (wild and/or farm-raised) recordkeeping to be 52 hours per year per establishment for fresh and frozen seafood processors and fish and seafood wholesalers. For general line grocery wholesalers, we estimate the maintenance burden hours to be 12 hours per year per establishment. The burden estimate for general line grocery wholesalers is reduced from the 52 hours estimated in the proposed rule because fish and shellfish represent only a portion of the commodities handled by these establishments.
Maintenance activities will include inputting, tracking, and storing country of origin and method of production (wild and/or farm-raised) information for each covered fish and shellfish commodity. Since this is mostly an administrative task, we estimate the cost using the July 2002 BLS wage rate from the National Compensation Survey for administrative support occupations ($13.41 per hour with an additional 27.5 percent added to cover overhead costs for a total of $17.10 per hour). This occupation category includes stock and inventory clerks and record clerks. Coupled with the assumed hours per establishment, the resulting total annual maintenance costs to handlers, processors, and wholesalers and other intermediaries are estimated at approximately $4.0 million.
Retailers will need to supply country of origin and method of production (wild and/or farm-raised) information for each covered fish and shellfish commodity sold at each store. Therefore, additional recordkeeping maintenance costs are believed to impact each establishment. Because fish and shellfish represent only a portion of the covered commodities included in the proposed rule, estimated recordkeeping maintenance burden is lowered from 365 hours to 26 hours per year per retail establishment. This represents 30 minutes per week. Using the BLS wage rate for administrative support occupations ($13.41 per hour with an additional 27.5 percent added to cover overhead costs for a total of $17.10 per hour) results in total estimated annual maintenance costs to retailers of $16.5 million.
The total maintenance recordkeeping costs for all producer, intermediary, and retail enterprises are thus estimated at approximately $24.4 million.
The total first-year recordkeeping burden is calculated by summing the initial and maintenance costs. The total recordkeeping costs are estimated for harvesters and producers at approximately $9.4 million; for handlers, processors, and wholesalers at approximately $12.8 million; and for retailers at approximately $22.4 million. We estimate the total recordkeeping cost for all participants in the supply chain for covered fish and shellfish commodities at $44.6 million for the first year, with subsequent maintenance costs of $24.4 million per year.
Public reporting burden for this recordkeeping storage and maintenance is estimated to average 12.4 hours per year per individual recordkeeper.
AMS is committed to implementation of the Government Paperwork Elimination Act (GPEA) to provide the public with the option to submit or transact business electronically to the extent practicable. This new information collection has no forms and is only for recordkeeping purposes. Therefore, the provisions of an electronic submission alternative is not required by GPEA.
AMS is soliciting comments from all interested parties concerning these recordkeeping requirements. Comments are specifically invited on: (1) Whether the recordkeeping is necessary for the proper operation of this program, including whether the information would have practical utility; (2) the accuracy of USDA's estimate of the burden of the recordkeeping requirements, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the records to be maintained; and (4) ways to minimize the burden of the recordkeeping on those who are to maintain and/or make the records available, including the use of appropriate automated, electronic, mechanical, or other technological recordkeeping techniques or other forms of information technology. Comments concerning the recordkeeping requirements contained in this interim final rule should reference the date and page number of this issue of the
Comments sent to the above location should also be sent to the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, 725 17th Street, NW., Room 725, Washington, DC 20503. All responses to this action will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
1. ERS, USDA. Food Consumption (Per Capita) Data System,
2. NMFS, NOAA, U.S. Dept. of Commerce. Fisheries of the United States 2001. September 2002.
3. FAS, USDA. U.S. Trade Internet System,
4. NMFS, NOAA, U.S. Dept. of Commerce. National Seafood Consumption Survey.
5. ERS, USDA. Food CPI, Prices and Expenditures: Sales of Food at Home by Type of Outlet,
6. U.S. Census Bureau. 1997 Economic Census. Retail Trade Subject Series. Establishment and Firm Size. EC97R44S-SZ. Issued October 2000.
7. AMS, USDA. Perishable Agricultural Commodities Act database.
8. U.S. Census Bureau. 2000 Statistics of U.S. Businesses.
9. NASS, USDA. 1998 Census of Aquaculture.
10. U.S. Census Bureau. 2000 Nonemployer Statistics.
11. Bureau of Labor Statistics, Department of Labor, National Compensation Survey, 3rd quarter 2003, Employer Cost for Employee Compensation.
12. Food and Drug Administration. “Establishment and Maintenance of Records Under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002,” proposed rule. May 9, 2003.
13. RTI, International 2000. FDA Labeling Cost Model: Final Report. Revised April 2002.
14. NASS, USDA. Farm Labor, August 15, 2003.
The contents of this rule were reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have a retroactive effect. States and local jurisdictions are preempted from creating or operating country of origin labeling programs for the commodities specified in the Act and these regulations. With regard to other Federal statutes, all labeling claims made in conjunction with this regulation must be consistent with other applicable Federal requirements. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule.
AMS considered the potential civil rights implications of this rule on minorities, women, or persons with disabilities to ensure that no person or group shall be discriminated against on the basis of race, color, national origin, gender, religion, age, disability, sexual orientation, marital or family status, political beliefs, parental status, or protected genetic information. This review included persons that are employees of the entities that are subject to these regulations. This interim final rule does not require affected entities to relocate or alter their operations in ways that could adversely affect such persons or groups. Further, this rule will not deny any persons or groups the benefits of the program or subject any persons or groups to discrimination.
This rule has been reviewed under Executive Order 13132, Federalism. This Order directs agencies to construe, in regulations and otherwise, a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence to conclude that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute. This rule is required by the Farm Bill. While this statute does not contain an express preemption provision, it is clear from the language in the statute that Congress intended preemption of State law.
Several States have implemented mandatory programs for country of origin labeling of certain commodities. For example, Alabama, Arkansas, Mississippi, and Louisiana have origin labeling requirements for certain seafood products. Other States including Wyoming, Idaho, North Dakota, South Dakota, Louisiana, Kansas, and Mississippi have origin labeling requirements for certain meat products. In addition, the State of Florida and the State of Maine have origin labeling requirements for fresh produce items.
To the extent that these State country of origin labeling programs encompass commodities which are not governed by this regulation, the States may continue to operate them. For those State country of origin labeling programs that encompass commodities which are governed by this regulation, these programs are preempted. In most cases, the requirements contained within this rule are more stringent and prescriptive than the requirements of the State programs. With regard to consultation with States, as directed by the law, AMS has consulted with the States that have country of origin labeling programs. Further, States were expressly invited to comment on the proposed regulation as it related to existing State programs. No States submitted any comments pertaining to this issue.
This interim final rule contains those provisions of the October 30, 2003, (68 FR 61944) proposed rule that pertain to fish and shellfish covered commodities. Modifications to these provisions have been made as discussed herein. The implementation of mandatory COOL for all covered commodities except wild and farm-raised fish and shellfish has been delayed until September 30, 2006. The provisions for the other covered commodities, including muscle cuts of beef (including veal), lamb, and pork; ground beef, ground lamb, and ground pork; perishable agricultural commodities; and peanuts are not made final in this action. In view of the changes made in this interim final rule to fish and shellfish covered commodities, interested persons should examine provisions concerning their respective covered commodities in light of these changes. Assuming that provisions of the interim final rule would be applied to all covered commodities, the Agency specifically invites comments on the issues described below.
In this regard, particular attention is drawn to the changes made for fish and shellfish with respect to definition of a processed food item and recordkeeping. Under this interim final rule, all cooked products (
AMS has reduced the recordkeeping retention requirement for suppliers and
With respect to costs, modifications in this interim final rule resulted in lower estimates of first-year implementation costs for affected entities in the fish and shellfish sector, relative to the upper range estimates of first-year implementation costs presented in the proposed rule. If applied to the other covered commodities, corresponding changes to the proposed rule would result in lowered estimates of first-year implementation costs for those commodities relative to the upper-range estimates presented in the PRIA. In the PRIA, upper-range first-year implementation costs for all covered commodities (including fish and shellfish) were estimated at $3.9 billion. Preliminary analysis suggests that requirements in this interim final rule, if applied to all covered commodities, would result in a reduction on the order of 20 to 30 percent in estimated first-year implementation costs relative to the PRIA upper-range estimate.
This interim final rule is made effective 180 days after the date of publication in the
Further, pursuant to 5 U.S.C. 553, it is found and determined upon good cause that it is impractical, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect. This action is authorized under the Agricultural Marketing Act of 1946, as amended. After issuance of a proposed rule, the Department has decided to provide further opportunity to comment due to the changes made as a result of comments received and the cost associated with this rule. Further, this rule provides for a 90-day comment period.
Agricultural commodities, Fish, Food labeling, Reporting and recordkeeping requirements.
7 U.S.C. 1621
(a)
(1) [Reserved]
(2) [Reserved]
(3) Farm-raised fish and shellfish (including fillets, steaks, nuggets, and any other flesh);
(4) Wild fish and shellfish (including fillets, steaks, nuggets, and any other flesh);
(5) [Reserved]
(6) [Reserved]
(b) Covered commodities are excluded from this part if the commodity is an ingredient in a processed food item as defined in § 60.119.
(a) [Reserved]
(b) Farm-raised Fish and Shellfish: Hatched, raised, harvested, and processed.
(c) Wild Fish and Shellfish: Harvested and processed.
(a) [Reserved]
(b) Farm-raised fish and shellfish as it relates to the production steps defined in § 60.122: the period of time from hatched to harvested.
(a) [Reserved]
(b) [Reserved]
(c) Farm-raised fish and shellfish: from fish or shellfish hatched, raised, harvested, and processed in the United States, and that has not undergone a substantial transformation (as established by U.S. Customs and Border Protection) outside of the United States.
(d) Wild-fish and shellfish: from fish or shellfish harvested in the waters of the United States or by a U.S. flagged vessel and processed in the United States or aboard a U.S. flagged vessel, and that has not undergone a substantial transformation (as established by U.S. Customs and Border Protection) outside of the United States.
(e) [Reserved]
(f) [Reserved]
(a) Any vessel documented under chapter 121 of title 46, United States Code; or
(b) Any vessel numbered in accordance with chapter 123 of title 46, United States Code.
In providing notice of the country of origin as required by the Act, the following requirements shall be followed by retailers:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(1) [Reserved]
(2) Wild and Farm-Raised Fish and Shellfish: If a covered commodity was imported from country X and subsequently substantially transformed (as established by U.S. Customs and Border Protection) in the United States or aboard a U.S. flagged vessel, such product shall be labeled at retail as “From [country X], processed in the United States.”
(h)
(1) For imported covered commodities that have not subsequently been substantially transformed in the United States that are commingled with other imported covered commodities that have not been substantially transformed in the United States, and/or covered commodities of U.S. origin and/or covered commodities as described in § 60.200(g), the declaration shall indicate the countries of origin for covered commodities in accordance with existing Federal legal requirements.
(2) For imported covered commodities that have subsequently undergone substantial transformation in the United States that are commingled with other imported covered commodities that have subsequently undergone substantial transformation in the United States (either prior to or following substantial transformation in the United States) and/or U.S. origin covered commodities, the declaration shall indicate the countries of origin contained therein or that may be contained therein.
(i)
(a) Country of origin declarations and method of production (wild and/or farm-raised) designations can either be in the form of a placard, sign, label, sticker, band, twist tie, pin tag, or other format that provides country of origin and method of production information. The country of origin declaration and method of production (wild and/or farm-raised) designation may be combined or made separately. Except as provided in § 60.200(g) and 60.200(h) of this regulation, the declaration of the country(ies) of origin of a product shall be listed according to applicable Federal legal requirements. Country of origin declarations may be in the form of a check box provided it is in conformance with other Federal legal requirements. Various forms of the production designation are acceptable, including “wild caught”, “wild”, “farm-raised”, “farmed”, or a combination of these terms for blended products that contain both wild and farm-raised fish or shellfish, provided it can be readily understood by the consumer and is in conformance with other Federal labeling laws. Designations such as “ocean caught”, “caught at sea”, “line caught”, “cultivated”, or “cultured” are not acceptable substitutes. Alternatively, method of production (wild and/or farm-raised) designations may be in the form of a check box.
(b) The declaration of the country(ies) of origin and method(s) of production (wild and/or farm-raised) (
(c) The declaration of the country(ies) of origin and the method(s) of production (wild and/or farm-raised) may be typed, printed, or handwritten provided it is in conformance with other Federal labeling laws and does not obscure other labeling information required by other Federal regulations.
(d) A bulk container (
(e) Abbreviations and variant spellings that unmistakably indicate the country of origin, such as “U.K.” for “The United Kingdom of Great Britain and Northern Ireland” are acceptable. The adjectival form of the name of a country may be used as proper notification of the country(ies) of origin of imported commodities provided the adjectival form of the name does not appear with other words so as to refer to a kind or species of product. Symbols or flags alone may not be used to denote country of origin.
(f) State or regional label designations are not acceptable in lieu of country of origin labeling.
(a) General.
(1) All records must be legible and may be maintained in either electronic or hard copy formats. Due to the variation in inventory and accounting documentary systems, various forms of documentation and records will be acceptable.
(2) Upon request by USDA representatives, suppliers and retailers subject to this subpart shall make available to USDA representatives, records and other documentary evidence that will permit substantiation of an origin claim and method(s) of production (wild and/or farm-raised), in a timely manner during normal hours of business and at a location that is reasonable in consideration of the products and firm under review.
(b) Responsibilities of Suppliers.
(1) Any person engaged in the business of supplying a covered commodity to a retailer, whether directly or indirectly, must make available information to the buyer about the country(ies) of origin and method(s) of production (wild and/or farm-raised), of the covered commodity. This information may be provided either on the product itself, on the master shipping container, or in a document that accompanies the product through retail sale provided that it identifies the product and its country(ies) of origin and method(s) of production, unique to that transaction by means of a lot number or other unique identifier. In addition, the supplier of a covered commodity that is responsible for initiating a country(ies) of origin and method(s) of production (wild and/or farm-raised) claim must possess records that are necessary to substantiate that claim.
(2) Any intermediary supplier (
(3) Any person engaged in the business of supplying a covered commodity to a retailer, whether directly or indirectly (
(4) For an imported covered commodity (as defined in § 60.200(f)), the importer of record as determined by U.S. Customs and Border Protection, must ensure that records: Provide clear product tracking from the port of entry into the United States to the immediate subsequent recipient and accurately reflect the country of origin and method of production (wild and/or farm-raised) of the item as identified in relevant CBP entry documents and information systems; and must maintain such records for a period of 1 year from the date of the transaction.
(c) Responsibilities of Retailers.
(1) Records and other documentary evidence relied upon at the point of sale to establish a covered commodity's country(ies) of origin and designation of wild and/or farm-raised, must be available during normal business hours to any duly authorized representative of USDA at the facility for as long as the product is on hand. For pre-labeled products, the label itself is sufficient evidence on which the retailer may rely to establish the product's origin and method(s) of production (wild and/or farm-raised).
(2) Records that identify the retail supplier, the product unique to that transaction by means of a lot number or other unique identifier, and for products that are not pre-labeled the country of origin information and the method(s) of production (wild and/or farm-raised) must be maintained for a period of 1 year from the date the declaration is made at retail. Such records may be located at the retailer's point of distribution, warehouse, central offices or other off-site location.
(3) Any retailer handling a covered commodity that is found to be designated incorrectly as to country of origin and/or the method of production (wild and/or farm-raised), or for frozen fish and shellfish covered commodities caught or harvested before December 6, 2004, for the date of harvest, shall not be held liable for a violation of the Act by reason of the conduct of another if the retailer could not have been reasonably expected to have had knowledge of the violation.
The following notice was originally published at 60 FR 43825-43829, August 23, 1995.
By Presidential Proclamation No. 5030 made on March 10, 1983, the United States established an exclusive economic zone, the outer limit of which is a line drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the breadth of the territorial sea is measured.
The Government of the United States of America has been, is, and will be, engaged in consultations and negotiations with governments of neighboring countries concerning the delimitation of areas subject to the respective jurisdiction of the United States and of these countries.
The limits of the exclusive economic zone of the United States as set forth below are intended to be without prejudice to any negotiations with these countries or to any positions which may have been or may be adopted respecting the limits of maritime jurisdiction in such areas. Further, the limits of the exclusive economic zone set forth below are without prejudice to the outer limit of the continental shelf of the United States where that shelf extends beyond 200 nautical miles from the baseline in accordance with international law.
The following notices have been published which have defined the United States maritime boundaries and fishery conservation zone established March 1, 1977: Public Notice 506,
This Public Notice supersedes all limits defined in the above Public Notices.
Therefore, the Department of State on behalf of the Government of the United States hereby announces the limits of the exclusive economic zone of the United States of America, within which the United States will exercise its sovereign rights and jurisdiction as permitted under international law, pending the establishment of permanent maritime boundaries by mutual agreement in those cases where a boundary is necessary and has not already been agreed.
Publication of a notice on this subject which is effective immediately upon publication is necessary to effectively exercise the foreign affairs responsibility of the Department of State. (
Unless otherwise noted, the coordinates in this notice relate to the Clarke 1866 Ellipsoid and the North American 1927 Datum (“NAD 27”). Unless otherwise specified, the term “straight line” in this notice means a geodetic line.
In the Gulf of Maine area, the limit of the exclusive economic zone is defined by straight lines connecting the following coordinates:
1. 44 deg. 46′35.346″ N., 66 deg. 54′11.253” W.
2. 44 deg. 44′41″ N., 66 deg. 56′17″ W.
3. 44 deg. 43′56″ N., 66 deg. 56′26″ W.
4. 44 deg. 39′13″ N., 66 deg. 57′29″ W.
5. 44 deg. 36′58″ N., 67 deg. 00′36″ W.
6. 44 deg. 33′27″ N., 67 deg. 02′57″ W.
7. 44 deg. 30′38″ N., 67 deg. 02′38″ W.
8. 44 deg. 29′03″ N., 67 deg. 03′42″ W.
9. 44 deg. 25′27″ N., 67 deg. 02′16″ W.
10. 44 deg. 21′43″ N., 67 deg. 02′33″ W.
11. 44 deg. 14′06″ N., 67 deg. 08′38″ W.
12. 44 deg. 11′12″ N., 67 deg. 16′46″ W.
13. 42 deg. 53′14″ N., 67 deg. 44′35″ W.
14. 42 deg. 31′08″ N., 67 deg. 28′05″ W.
15. 40 deg. 27′05″ N., 65 deg. 41′59″ W.
Between points 15 and 16, the limit of the exclusive economic zone is 200 nautical miles seaward from the baseline from which the territorial sea is measured.
In the area of the Blake Plateau, the Straits of Florida, and Eastern Gulf of Mexico, the limit of the exclusive economic zone shall be determined by straight lines connecting the following coordinates:
16. 28 deg. 17′10″ N., 76 deg. 36′45″ W.
17. 28 deg. 17′10″ N., 79 deg. 11′24″ W.
18. 27 deg. 52′54″ N., 79 deg. 28′36″ W.
19. 27 deg. 26′00″ N., 79 deg. 31′38″ W.
20. 27 deg. 16′12″ N., 79 deg. 34′18″ W.
21. 27 deg. 11′53″ N., 79 deg. 34′56″ W.
22. 27 deg. 05′58″ N., 79 deg. 35′19″ W.
23. 27 deg. 00′27″ N., 79 deg. 35′17″ W.
24. 26 deg. 55′15″ N., 79 deg. 34′39″ W.
25. 26 deg. 53′57″ N., 79 deg. 34′27″ W.
26. 26 deg. 45′45″ N., 79 deg. 32′41″ W.
27. 26 deg. 44′29″ N., 79 deg. 32′23″ W.
28. 26 deg. 43′39″ N., 79 deg. 32′20″ W.
29. 26 deg. 41′11″ N., 79 deg. 32′01″ W.
30. 26 deg. 38′12″ N., 79 deg. 31′33″ W.
31. 26 deg. 36′29″ N., 79 deg. 31′07″ W.
32. 26 deg. 35′20″ N., 79 deg. 30′50″ W.
33. 26 deg. 34′50″ N., 79 deg. 30′46″ W.
34. 26 deg. 34′10″ N., 79 deg. 30′38″ W.
35. 26 deg. 31′11″ N., 79 deg. 30′15″ W.
36. 26 deg. 29′04″ N., 79 deg. 29′53″ W.
37. 26 deg. 25′30″ N., 79 deg. 29′58″ W.
38. 26 deg. 23′28″ N., 79 deg. 29′55″ W.
39. 26 deg. 23′20″ N., 79 deg. 29′54″ W.
40. 26 deg. 18′56″ N., 79 deg. 31′55″ W.
41. 26 deg. 15′25″ N., 79 deg. 33′17″ W.
42. 26 deg. 15′12″ N., 79 deg. 33′23″ W.
43. 26 deg. 08′08″ N., 79 deg. 35′53″ W.
44. 26 deg. 07′46″ N., 79 deg. 36′09″ W.
45. 26 deg. 06′58″ N., 79 deg. 36′35″ W.
46. 26 deg. 02′51″ N., 79 deg. 38′22″ W.
47. 25 deg. 59′29″ N., 79 deg. 40′03″ W.
48. 25 deg. 59′15″ N., 79 deg. 40′08″ W.
49. 25 deg. 57′47″ N., 79 deg. 40′38″ W.
50. 25 deg. 56′17″ N., 79 deg. 41′06″ W.
51. 25 deg. 54′03″ N., 79 deg. 41′38″ W.
52. 25 deg. 53′23″ N., 79 deg. 41′46″ W.
53. 25 deg. 51′53″ N., 79 deg. 41′59″ W.
54. 25 deg. 49′32″ N., 79 deg. 42′16″ W.
55. 25 deg. 48′23″ N., 79 deg. 42′23″ W.
56. 25 deg. 48′19″ N., 79 deg. 42′24″ W.
57. 25 deg. 46′25″ N., 79 deg. 42′44″ W.
58. 25 deg. 46′15″ N., 79 deg. 42′45″ W.
59. 25 deg. 43′39″ N., 79 deg. 42′59″ W.
60. 25 deg. 42′30″ N., 79 deg. 42′48″ W.
61. 25 deg. 40′36″ N., 79 deg. 42′27″ W.
62. 25 deg. 37′23″ N., 79 deg. 42′27″ W.
63. 25 deg. 37′07″ N., 79 deg. 42′27″ W.
64. 25 deg. 31′02″ N., 79 deg. 42′12″ W.
65. 25 deg. 27′58″ N., 79 deg. 42′11″ W.
66. 25 deg. 24′03″ N., 79 deg. 42′12″ W.
67. 25 deg. 22′20″ N., 79 deg. 42′20″ W.
68. 25 deg. 21′28″ N., 79 deg. 42′08″ W.
69. 25 deg. 16′51″ N., 79 deg. 41′24″ W.
70. 25 deg. 15′56″ N., 79 deg. 41′31″ W.
71. 25 deg. 10′38″ N., 79 deg. 41′31″ W.
72. 25 deg. 09′50″ N., 79 deg. 41′36″ W.
73. 25 deg. 09′02″ N., 79 deg. 41′45″ W.
74. 25 deg. 03′53″ N., 79 deg. 42′30″ W.
75. 25 deg. 02′58″ N., 79 deg. 42′57″ W.
76. 25 deg. 00′28″ N., 79 deg. 44′06″ W.
77. 24 deg. 59′01″ N., 79 deg. 44′49″ W.
78. 24 deg. 55′26″ N., 79 deg. 45′58″ W.
79. 24 deg. 44′16″ N., 79 deg. 49′25″ W.
80. 24 deg. 43′02″ N., 79 deg. 49′39″ W.
81. 24 deg. 42′34″ N., 79 deg. 50′51″ W.
82. 24 deg. 41′45″ N., 79 deg. 52′58″ W.
83. 24 deg. 38′30″ N., 79 deg. 59′59″ W.
84. 24 deg. 36′25″ N., 80 deg. 03′52″ W.
85. 24 deg. 33′16″ N., 80 deg. 12′44″ W.
86. 24 deg. 33′03″ N., 80 deg. 13′22″ W.
87. 24 deg. 32′11″ N., 80 deg. 15′17″ W.
88. 24 deg. 31′25″ N., 80 deg. 16′56″ W.
89. 24 deg. 30′55″ N., 80 deg. 17′48″ W.
90. 24 deg. 30′12″ N., 80 deg. 19′22″ W.
91. 24 deg. 30′04″ N., 80 deg. 19′45″ W.
92. 24 deg. 29′36″ N., 80 deg. 21′06″ W.
93. 24 deg. 28′16″ N., 80 deg. 24′36″ W.
94. 24 deg. 28′04″ N., 80 deg. 25′11″ W.
95. 24 deg. 27′21″ N., 80 deg. 27′21″ W.
96. 24 deg. 26′28″ N., 80 deg. 29′31″ W.
97. 24 deg. 25′05″ N., 80 deg. 32′23″ W.
98. 24 deg. 23′28″ N., 80 deg. 36′10″ W.
99. 24 deg. 22′31″ N., 80 deg. 38′57″ W.
100. 24 deg. 22′05″ N., 80 deg. 39′52″ W.
101. 24 deg. 19′29″ N., 80 deg. 45′22″ W.
102. 24 deg. 19′14″ N., 80 deg. 45′48″ W.
103. 24 deg. 18′36″ N., 80 deg. 46 deg. 50″ W.
104. 24 deg. 18′33″ N., 80 deg. 46′55″ W.
105. 24 deg. 09′49″ N., 80 deg. 59′48″ W.
106. 24 deg. 09′46″ N., 80 deg. 59′52″ W.
107. 24 deg. 08′56″ N., 81 deg. 01′08″ W.
108. 24 deg. 03′28″ N., 81 deg. 01′52″ W.
109. 24 deg. 08′24″ N., 81 deg. 01′58″ W.
110. 24 deg. 07′26″ N., 81 deg. 03′07″ W.
111. 24 deg. 02′18″ N., 81 deg. 09′06″ W.
112. 23 deg. 59′58″ N., 81 deg. 11′16″ W.
113. 23 deg. 55′30″ N., 81 deg. 12′55″ W.
114. 23 deg. 53′50″ N., 81 deg. 19′44″ W.
115. 23 deg. 50′50″ N., 81 deg. 30′00″ W.
116. 23 deg. 50′00″ N., 81 deg. 40′00″ W.
117. 23 deg. 49′03″ N., 81 deg. 50′00″ W.
118. 23 deg. 49′03″ N., 82 deg. 00′12″ W.
119. 23 deg. 49′40″ N., 82 deg. 10′00″ W.
120. 23 deg. 51′12″ N., 82 deg. 25′00″ W.
121. 23 deg. 51′12″ N., 82 deg. 40′00″ W.
122. 23 deg. 49′40″ N., 82 deg. 48′54″ W.
123. 23 deg. 49′30″ N., 82 deg. 51′12″ W.
124. 23 deg. 49′22″ N., 83 deg. 00′00″ W.
125. 23 deg. 49′50″ N., 83 deg. 15′00″ W.
126. 23 deg. 51′20″ N., 83 deg. 25′50″ W.
127. 23 deg. 52′25″ N., 83 deg. 33′02″ W.
128. 23 deg. 54′02″ N., 83 deg. 41′36″ W.
129. 23 deg. 55′45″ N., 83 deg. 48′12″ W.
130. 23 deg. 58′36″ N., 84 deg. 00′00″ W.
131. 24 deg. 09′35″ N., 84 deg. 29′28″ W.
132. 24 deg. 13′18″ N., 84 deg. 38′40″ W.
133. 24 deg. 16′39″ N., 84 deg. 46′08″ W.
134. 24 deg. 23′28″ N., 85 deg. 00′00″ W.
135. 24 deg. 26′35″ N., 85 deg. 06′20″ W.
136. 24 deg. 38′55″ N., 85 deg. 31′55″ W.
137. 24 deg. 44′15″ N., 85 deg. 43′12″ W.
138. 24 deg. 53′55″ N., 86 deg. 00′00″ W.
139. 25 deg. 12′25″ N., 86 deg. 33′12″ W.
Between points 139 and 140, the limit of the exclusive economic zone is 200 nautical miles seaward from the baseline from which the territorial sea is measured.
In the central Gulf of Mexico, the limit of the exclusive economic zone is determined by straight lines connecting the following coordinates:
140. 25 deg. 41′56.52.88″ N., 88 deg. 23′05.54″ W.
141. 25 deg. 46′52.00″ N., 90 deg. 29′41.00″ W.
142. 25 deg. 42′13.05″ N., 91 deg. 05′24.89″ W.
Between points 142 and 143, the limit of the exclusive economic zone is 200 nautical miles seaward from the baseline from which the territorial sea is measured.
In the western Gulf of Mexico, the limit of the exclusive economic zone is determined by straight lines connecting the following coordinates:
143. 25 deg. 59′48.28″ N., 93 deg. 26′42.19″ W.
144. 26 deg. 00′30.00″ N., 95 deg. 39′26.00″ W.
145. 26 deg. 00′31.00″ N., 96 deg. 48′29.00″ W.
146. 25 deg. 58′30.57″ N., 96 deg. 55′27.37″ W.
From point 146, the limit of United States jurisdiction is the territorial sea boundary with Mexico established by the United States of America and the United Mexican States in Article V(A) and annexes of the Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as the International Boundary, signed at Mexico City, November 23, 1970, and entered into force April 18, 1972, TIAS No. 7313, 23 UST 371.
In the area seaward of the Strait of Juan de Fuca, the limit of the exclusive economic zone shall be determined by straight lines connecting the points with the following coordinates:
1. 48 deg. 29′37.19″ N., 124 deg. 43′33.19″ W.
2. 48 deg. 30′11″ N., 124 deg. 47′13″ W.
3. 48 deg. 30′22″ N., 124 deg. 50′21″ W.
4. 48 deg. 30′14″ N., 124 deg. 54′52″ W.
5. 48 deg. 29′57″ N., 124 deg. 59′14″ W.
6. 48 deg. 29′44″ N., 125 deg. 00′06″ W.
7. 48 deg. 28′09″ N., 125 deg. 05′47″ W.
8. 48 deg. 27′10″ N., 125 deg. 08′25″ W.
9. 48 deg. 26′47″ N., 125 deg. 09′12″ W.
10. 48 deg. 20′16″ N., 125 deg. 22′48″ W.
11. 48 deg. 18′22″ N., 125 deg. 29′58″ W.
12. 48 deg. 11′05″ N., 125 deg. 53′48″ W.
13. 47 deg. 49′15″ N., 126 deg. 40′57″ W.
14. 47 deg. 36′47″ N., 127 deg. 11′58″ W.
15. 47 deg. 22′00″ N., 127 deg. 41′23″ W.
16. 46 deg. 42′05″ N., 128 deg. 51′56″ W.
17. 46 deg. 31′47″ N., 129 deg. 07′39″ W.
Between point 17 and 18, the limit of the exclusive economic zone is 200 nautical miles seaward from the baseline from which the breadth of the territorial sea is measured. In the area off the Southern California coast, the limit of the exclusive economic zone shall be determined by straight lines connecting the following points:
18. 30 deg. 32′31.20″ N., 121 deg. 51′58.37″ W.
19. 31 deg. 07′58.00″ N., 118 deg. 36′18.00″ W.
20. 32 deg. 37′37.00″ N., 117 deg. 49′31.00″ W.
21. 32 deg. 35′22.11″ N., 117 deg. 27′49.42″ W.
From point 21 to the coast, the limit of United States jurisdiction is the territorial sea boundary with Mexico established by the United States of America and the United Mexican States in Article V(B) and annexes of the Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as the International Boundary, signed at Mexico City, November 23, 1970, and entered into force April 18, 1972.
Off the coast of Alaska, in the area of the Beaufort Sea, the limit of exclusive economic zone shall be determined by straight lines, connecting the following coordinates:
1. 69 deg. 38′48.88″ N., 140 deg. 59′52.7″ W.
2. 69 deg. 38′52″ N., 140 deg. 59′51″ W.
3. 69 deg. 39′37″ N., 140 deg. 59′01″ W
4. 69 deg. 40′10″ N., 140 deg. 58′34″ W.
5. 69 deg. 41′30″ N., 140 deg. 57′00″ W.
6. 69 deg. 46′25″ N., 140 deg. 49′45″ W.
7. 69 deg. 47′54″ N., 140 deg. 47′07″ W.
8. 69 deg. 51′40″ N., 140 deg. 42′37″ W.
9. 70 deg. 09′26″ N., 140 deg. 19′22″ W.
10. 70 deg. 11′30″ N., 140 deg. 18′09″ W.
11. 70 deg. 29′07″ N., 140 deg. 09′51″ W.
12. 70 deg. 29′19″ N., 140 deg. 09′45″ W.
13. 70 deg. 37′31″ N., 140 deg. 02′47″ W.
14. 70 deg. 48′25″ N., 139 deg. 52′32″ W.
15. 70 deg. 58′02″ N., 139 deg. 47′16″ W.
16. 71 deg. 01′15″ N., 139 deg. 44′24″ W.
17. 71 deg. 11′58″ N., 139 deg. 33′58″ W.
18. 71 deg. 23′10″ N., 139 deg. 21′46″ W.
19. 72 deg. 12′18″ N., 138 deg. 26′19″ W.
20. 72 deg. 46′39″ N., 137 deg. 30′02″ W.
21. 72 deg. 56′49″ N., 137 deg. 34′08″ W.
Between point 21 and point 22, the limit of the exclusive economic zone is 200 nautical miles seaward from the baseline from which the territorial sea is measured. In the Chukchi Sea, Bering Strait, and northern Bering Sea, the limit of the exclusive economic zone shall be determined by straight lines connecting the following coordinates:
22. 72 deg. 46′29″ N., 168 deg. 58′37″ W.
23. 65 deg. 30′00″ N., 168 deg. 58′37″ W.
24. 65 deg. 19′58″ N., 168 deg. 21′38″ W.
25. 65 deg. 09′51″ N., 169 deg. 44′34″ W.
26. 64 deg. 59′41″ N., 170 deg. 07′23″ W.
27. 64 deg. 49′26″ N., 170 deg. 30′06″ W.
28. 64 deg. 39′08″ N., 170 deg. 52′43″ W.
29. 64 deg. 28′46″ N., 171 deg. 15′14″ W.
30. 64 deg. 18′20″ N., 171 deg. 37′40″ W.
31. 64 deg. 07′50″ N., 172 deg. 00′00″ W.
32. 63 deg. 59′27″ N., 172 deg. 18′39″ W.
33. 63 deg. 51′01″ N., 172 deg. 38′13″ W.
34. 63 deg. 42′33″ N., 172 deg. 55′42″ W.
35. 63 deg. 34′01″ N., 173 deg. 14′07″ W.
36. 63 deg. 25′27″ N., 173 deg. 32′27″ W.
37. 63 deg. 16′50″ N., 173 deg. 50′42″ W.
38. 63 deg. 08′11″ N., 174 deg. 08′52″ W.
39. 62 deg. 59′29″ N., 174 deg. 26′58″ W.
40. 62 deg. 50′44″ N., 174 deg. 44′59″ W.
41. 62 deg. 41′56″ N., 175 deg. 02′56″ W.
42. 62 deg. 33′06″ N., 175 deg. 20′48″ W.
43. 62 deg. 24′13″ N., 175 deg. 38′36″ W.
44. 62 deg. 15′17″ N., 175 deg. 56′19″ W.
45. 62 deg. 06′19″ N., 176 deg. 13′59″ W.
46. 61 deg. 57′18″ N., 176 deg. 31′34″ W.
47. 61 deg. 48′14″ N., 176 deg. 49′04″ W.
48. 61 deg. 39′08″ N., 177 deg. 06′31″ W.
49. 61 deg. 29′59″ N., 177 deg. 23′53″ W.
50. 61 deg. 20′47″ N., 177 deg. 41′11″ W.
51. 61 deg. 11′33″ N., 177 deg. 58′26″ W.
52. 61 deg. 02′17″ N., 178 deg. 15′36″ W.
53. 60 deg. 52′57″ N., 178 deg. 32′42″ W.
54. 60 deg. 43′35″ N., 178 deg. 49′45″ W.
55. 60 deg. 34′11″ N., 179 deg. 06′44″ W.
56. 60 deg. 24′44″ N., 179 deg. 23′38″ W.
57. 60 deg. 15′14″ N., 179 deg. 40′30″ W.
58. 60 deg. 11′39″ N., 179 deg. 46′49″ W.
Between points 58 and 59 the limit of the exclusive economic zone is 200 nautical miles seaward from the baseline from which the territorial sea is measured. In the southern Bering Sea and north Pacific Ocean, the limit of the exclusive economic zone shall be determined the straight lines connecting the following coordinates:
59. 56 deg. 16′31″ N., 174 deg. 00′19″ E.
60. 56 deg. 15′07″ N., 173 deg. 56′56″ E.
61. 56 deg. 04′34″ N., 173 deg. 41′08″ E.
62. 55 deg. 53′59″ N., 173 deg. 25′22″ E.
63. 55 deg. 43′22″ N., 173 deg. 09′37″ E.
64. 55 deg. 32′42″ N., 172 deg. 53′55″ E.
65. 55 deg. 21′59″ N., 172 deg. 38′14″ E.
66. 55 deg. 11′14″ N., 172 deg. 22′36″ E.
67. 55 deg. 00′26″ N., 172 deg. 06′59″ E.
68. 54 deg. 49′36″ N., 171 deg. 51′24″ E.
69. 54 deg. 38′43″ N., 171 deg. 35′51″ E.
70. 54 deg. 27′48″ N., 171 deg. 20′20″ E.
71. 54 deg. 16′50″ N., 171 deg. 04′50″ E.
72. 54 deg. 05′50″ N., 170 deg. 49′22″ E.
73. 53 deg. 54′47″ N., 170 deg. 33′56″ E.
74. 53 deg. 43′42″ N., 170 deg. 18′31″ E.
75. 53 deg. 32′46″ N., 170 deg. 05′29″ E.
76. 53 deg. 21′48″ N., 169 deg. 52′32″ E.
77. 53 deg. 10′49″ N., 169 deg. 39′40″ E.
78. 52 deg. 59′48″ N., 169 deg. 26′53″ E.
79. 52 deg. 48′46″ N., 169 deg. 14′12″ E.
80. 52 deg. 37′43″ N., 169 deg. 01′36″ E.
81. 52 deg. 26′38″ N., 168 deg. 49′05″ E.
82. 52 deg. 15′31″ N., 168 deg. 36′39″ E.
83. 52 deg. 04′23″ N., 168 deg. 24′17″ E.
84. 51 deg. 53′14″ N., 168 deg. 12′01″ E.
85. 51 deg. 42′03″ N., 167 deg. 59′49″ E.
86. 51 deg. 30′51″ N., 167 deg. 47′42″ E.
87. 51 deg. 22′15″ N., 167 deg. 38′28″ E.
From point 87 to point 88, the limit of the exclusive economic zone is 200 nautical miles from the baseline from which the territorial sea is measured. From point 88, the southern limit of the exclusive economic zone off the coast of Alaska shall be determined by straight lines connecting the following coordinates:
88. 53 deg. 28′27″ N., 138 deg. 45′20″ W.
89. 54 deg. 00′01″ N., 135 deg. 45′57″ W.
90. 54 deg. 07′30″ N., 134 deg. 56′24″ W.
91. 54 deg. 12′45″ N., 134 deg. 25′03″ W.
92. 54 deg. 12′57″ N., 134 deg. 23′47″ W.
93. 54 deg. 15′40″ N., 134 deg. 10′49″ W.
94. 54 deg. 20′33″ N., 133 deg. 49′21″ W.
95. 54 deg. 22′01″ N., 133 deg. 44′24″ W.
96. 54 deg. 30′06″ N., 133 deg. 16′58″ W.
97. 54 deg. 31′02″ N., 133 deg. 14′00″ W.
98. 54 deg. 30′42″ N., 133 deg. 11′28″ W.
99. 54 deg. 30′10″ N., 133 deg. 07′43″ W.
100. 54 deg. 30′03″ N., 133 deg. 07′00″ W.
101. 54 deg. 28′32″ N., 132 deg. 56′28″ W.
102. 54 deg. 28′25″ N., 132 deg. 55′54″ W.
103. 54 deg. 27′23″ N., 132 deg. 50′42″ W.
104. 54 deg. 27′07″ N., 132 deg. 49′35″ W.
105. 54 deg. 26′00″ N., 132 deg. 44′12″ W.
106. 54 deg. 24′54″ N., 132 deg. 39′46″ W.
107. 54 deg. 24′34″ N., 132 deg. 38′16″ W.
108. 54 deg. 24′39″ N., 132 deg. 26′51″ W.
109. 54 deg. 24′41″ N., 132 deg. 24′35″ W.
110. 54 deg. 24′41″ N., 132 deg. 24′29″ W.
111. 54 deg. 24′52″ N., 132 deg. 23′39″ W.
112. 54 deg. 21′51″ N., 132 deg. 02′54″ W.
113. 54 deg. 26′41″ N., 131 deg. 49′28″ W.
114. 54 deg. 28′18″ N., 131 deg. 45′20″ W.
115. 54 deg. 30′32″ N., 131 deg. 38′01″ W.
116. 54 deg. 29′53″ N., 131 deg. 33′48″ W.
117. 54 deg. 36′53″ N., 131 deg. 19′22″ W.
118. 54 deg. 39′09″ N., 131 deg. 16′17″ W.
119. 54 deg. 40′52″ N., 131 deg. 13′54″ W.
120. 54 deg. 42′11″ N., 131 deg. 13′00″ W.
121. 54 deg. 46′16″ N., 131 deg. 04′43″ W.
122. 54 deg. 45′39″ N., 131 deg. 03′06″ W.
123. 54 deg. 44′12″ N., 130 deg. 59′44″ W.
124. 54 deg. 43′46″ N., 130 deg. 58′55″ W.
125. 54 deg. 43′00″ N., 130 deg. 57′41″ W.
126. 54 deg. 42′34″ N., 130 deg. 57′09″ W.
127. 54 deg. 42′27″ N., 130 deg. 56′18″ W.
128. 54 deg. 41′26″ N., 130 deg. 53′39″ W.
129. 54 deg. 41′21″ N., 130 deg. 53′18″ W.
130. 54 deg. 41′05″ N., 130 deg. 49′17″ W.
131. 54 deg. 41′06″ N., 130 deg. 48′31″ W.
132. 54 deg. 40′46″ N., 130 deg. 45′51″ W.
133. 54 deg. 40′41″ N., 130 deg. 44′59″ W.
134. 54 deg. 40′42″ N., 130 deg. 44′43″ W.
135. 54 deg. 40′03″ N., 130 deg. 42′22″ W.
136. 54 deg. 39′48″ N., 130 deg. 41′35″ W.
137. 54 deg. 39′14″ N., 130 deg. 39′18″ W.
138. 54 deg. 39′54″ N., 130 deg. 38′58″ W.
139. 54 deg. 41′09″ N., 130 deg. 38′58″ W.
140. 54 deg. 42′22″ N., 130 deg. 38′26″ W.
141. 54 deg. 42′47″ N., 130 deg. 38′06″ W.
142. 54 deg. 42′58″ N., 130 deg. 37′57″ W.
143. 54 deg. 43′00″ N., 130 deg. 37′55″ W.
144. 54 deg. 43′15″ N., 130 deg. 37′44″ W.
145. 54 deg. 43′24″ N., 130 deg. 37′39″ W.
146. 54 deg. 43′30.15″ N., 130 deg. 37′37.01″ W.
The seaward limit of the exclusive economic zone around the Commonwealth of Puerto Rico and the Virgin Islands of the United States is a line 200 nautical miles from the baseline from which the breadth of the territorial sea is measured, except that to the east, south, and west, the limit of the exclusive economic zone shall be determined by straight lines connecting the following coordinates:
1. 21 deg. 48′33″ N., 65 deg. 50′31″ W.
2. 21 deg. 41′20″ N., 65 deg. 49′13″ W.
3. 20 deg. 58′05″ N., 65 deg. 40′30″ W.
4. 20 deg. 46′56″ N., 65 deg. 38′14″ W.
5. 19 deg. 57′29″ N., 65 deg. 27′21″ W.
6. 19 deg. 37′29″ N., 65 deg. 20′57″ W.
7. 19 deg. 12′25″ N., 65 deg. 06′08″ W.
8. 18 deg. 45′14″ N., 65 deg. 00′22″ W.
9. 18 deg. 41′14″ N., 64 deg. 59′33″ W.
10. 18 deg. 29′22″ N., 64 deg. 53′50″ W.
11. 18 deg. 27′36″ N., 64 deg. 53′22″ W.
12. 18 deg. 25′22″ N., 64 deg. 52′39″ W.
13. 18 deg. 24′31″ N., 64 deg. 52′19″ W.
14. 18 deg. 23′51″ N., 64 deg. 51′50″ W.
15. 18 deg. 23′43″ N., 64 deg. 51′23″ W.
16. 18 deg. 23′37″ N., 64 deg. 50′18″ W.
17. 18 deg. 23′48″ N., 64 deg. 49′42″ W.
18. 18 deg. 24′11″ N., 64 deg. 49′01″ W.
19. 18 deg. 24′29″ N., 64 deg. 47′57″ W.
20. 18 deg. 24′18″ N., 64 deg. 47′00″ W.
21. 18 deg. 23′14″ N., 64 deg. 46′37″ W.
22. 18 deg. 22′38″ N., 64 deg. 45′21″ W.
23. 18 deg. 22′40″ N., 64 deg. 44′42″ W.
24. 18 deg. 22′42″ N., 64 deg. 44′36″ W.
25. 18 deg. 22′37″ N., 64 deg. 44′24″ W.
26. 18 deg. 22′40″ N., 64 deg. 43′42″ W.
27. 18 deg. 22′30″ N., 64 deg. 43′36″ W.
28. 18 deg. 22′25″ N., 64 deg. 42′58″ W.
29. 18 deg. 22′27″ N., 64 deg. 42′28″ W.
30. 18 deg. 22′16″ N., 64 deg. 42′03″ W.
31. 18 deg. 22′23″ N., 64 deg. 40′59″ W.
32. 18 deg. 21′58″ N., 64 deg. 40′15″ W.
33. 18 deg. 21′51″ N., 64 deg. 38′22″ W.
34. 18 deg. 21′22″ N., 64 deg. 38′16″ W.
35. 18 deg. 20′39″ N., 64 deg. 38′32″ W.
36. 18 deg. 19′16″ N., 64 deg. 38′13″ W.
37. 18 deg. 19′07″ N., 64 deg. 38′16″ W.
38. 18 deg. 17′24″ N., 64 deg. 39′37″ W.
39. 18 deg. 16′43″ N., 64 deg. 39′41″ W.
40. 18 deg. 11′34″ N., 64 deg. 38′58″ W.
41. 18 deg. 03′03″ N., 64 deg. 38′03″ W.
42. 18 deg. 02′57″ N., 64 deg. 29′35″ W.
43. 18 deg. 02′52″ N., 64 deg. 27′03″ W.
44. 18 deg. 02′30″ N., 64 deg. 21′08″ W.
45. 18 deg. 02′31″ N., 64 deg. 20′08″ W.
46. 18 deg. 02′01″ N., 64 deg. 15′39″ W.
47. 18 deg. 00′12″ N., 64 deg. 02′29″ W.
48. 17 deg. 59′58″ N., 64 deg. 01′02″ W.
49. 17 deg. 58′47″ N., 63 deg. 57′00″ W.
50. 17 deg. 57′51″ N., 63 deg. 53′53″ W.
51. 17 deg. 56′37″ N., 63 deg. 53′20″ W.
52. 17 deg. 39′48″ N., 63 deg. 54′54″ W.
53. 17 deg. 37′15″ N., 63 deg. 55′11″ W.
54. 17 deg. 30′28″ N., 63 deg. 55′57″ W.
55. 17 deg. 11′43″ N., 63 deg. 58′00″ W.
56. 17 deg. 05′07″ N., 63 deg. 58′42″ W.
57. 16 deg. 44′49″ N., 64 deg. 01′08″ W.
58. 16 deg. 43′22″ N., 64 deg. 06′31″ W.
59. 16 deg. 43′10″ N., 64 deg. 06′59″ W.
60. 16 deg. 42′40″ N., 64 deg. 08′06″ W.
61. 16 deg. 41′43″ N., 64 deg. 10′07″ W.
62. 16 deg. 35′19″ N., 64 deg. 23′39″ W.
63. 16 deg. 23′30″ N., 64 deg. 45′54″ W.
64. 15 deg. 39′31″ N., 65 deg. 58′41″ W.
65. 15 deg. 30′10″ N., 66 deg. 07′09″ W.
66. 15 deg. 14′06″ N., 66 deg. 19′57″ W.
67. 14 deg. 55′48″ N., 66 deg. 34′30″ W.
68. 14 deg. 56′06″ N., 66 deg. 51′40″ W.
69. 14 deg. 58′27″ N., 67 deg. 04′19″ W.
70. 14 deg. 58′45″ N., 67 deg. 05′17″ W.
71. 14 deg. 58′58″ N., 67 deg. 06′11″ W.
72. 14 deg. 59′10″ N., 67 deg. 07′00″ W.
73. 15 deg. 02′32″ N., 67 deg. 23′40″ W.
74. 15 deg. 05′07″ N., 67 deg. 36′23″ W.
75. 15 deg. 10′38″ N., 68 deg. 03′46″ W.
76. 15 deg. 11′06″ N., 68 deg. 09′21″ W.
77. 15 deg. 12′33″ N., 68 deg. 27′32″ W.
78. 15 deg. 12′51″ N., 68 deg. 28′56″ W.
79. 15 deg. 46′46″ N., 68 deg. 26′04″ W.
80. 17 deg. 21′30″ N., 68 deg. 17′53″ W.
81. 17 deg. 38′01″ N., 68 deg. 16′46″ W.
82. 17 deg. 50′24″ N., 68 deg. 16′11″ W.
83. 17 deg. 58′07″ N., 68 deg. 15′52″ W.
84. 18 deg. 02′28″ N., 68 deg. 15′40″ W.
85. 18 deg. 06′10″ N., 68 deg. 15′27″ W.
86. 18 deg. 07′27″ N., 68 deg. 15′33″ W.
87. 18 deg. 09′12″ N., 68 deg. 14′53″ W.
88. 18 deg. 17′06″ N., 68 deg. 11′28″ W.
89. 18 deg. 19′20″ N., 68 deg. 09′40″ W.
90. 18 deg. 22′42″ N., 68 deg. 06′57″ W.
91. 18 deg. 24′39″ N., 68 deg. 04′58″ W.
92. 18 deg. 25′25″ N., 68 deg. 04′09″ W.
93. 18 deg. 28′08″ N., 68 deg. 00′59″ W.
94. 18 deg. 31′27″ N., 67 deg. 56′57″ W.
95. 18 deg. 32′58″ N., 67 deg. 55′07″ W.
96. 18 deg. 34′34″ N., 67 deg. 52′53″ W.
97. 18 deg. 54′37″ N., 67 deg. 46′21″ W.
98. 19 deg. 00′42″ N., 67 deg. 44′25″ W.
99. 19 deg. 10′00″ N., 67 deg. 41′24″ W.
100. 19 deg. 19′03″ N., 67 deg. 38′19″ W.
101. 19 deg. 21′20″ N., 67 deg. 38′01″ W.
102. 19 deg. 59′45″ N., 67 deg. 31′52″ W.
103. 20 deg. 00′59″ N., 67 deg. 31′35″ W.
104. 20 deg. 01′17″ N., 67 deg. 31′29″ W.
105. 20 deg. 02′49″ N., 67 deg. 31′04″ W.
106. 20 deg. 03′30″ N., 67 deg. 30′52″ W.
107. 20 deg. 09′28″ N., 67 deg. 29′11″ W.
108. 20 deg. 48′18″ N., 67 deg. 17′50″ W.
109. 21 deg. 22′48″ N., 67 deg. 02′34″ W.
110. 21 deg. 30′18″ N., 66 deg. 59′05″ W.
111. 21 deg. 33′47″ N., 66 deg. 57′30″ W.
112. 21 deg. 51′24″ N., 66 deg. 49′30″ W.
Navassa Island. The limits of the exclusive economic zone around Navassa Island remain to be determined.
Northern Mariana Islands and Guam. The seaward limit of the exclusive economic zone is 200 nautical miles from the baseline from which the breadth of the territorial sea is measured, except that to the north of the Northern Mariana Islands, the limit of the exclusive economic zone shall be determined by straight lines connecting the following points:
1. 23 deg. 53′35″ N., 145 deg. 05′46″ E.
2. 23 deg. 44′32″ N., 144 deg. 54′05″ E.
3. 23 deg. 33′52″ N., 144 deg. 40′23″ E.
4. 23 deg. 16′11″ N., 144 deg. 17′47″ E.
5. 22 deg. 50′13″ N., 143 deg. 44′57″ E.
6. 22 deg. 18′13″ N., 143 deg. 05′02″ E.
7. 21 deg. 53′58″ N., 142 deg. 35′03″ E.
8. 21 deg. 42′14″ N., 142 deg. 20′39″ E.
9. 21 deg. 40′08″ N., 142 deg. 18′05″ E.
10. 21 deg. 28′21″ N., 142 deg. 03′45″ E.
11. 20 deg. 58′24″ N., 141 deg. 27′33″ E.
12. 20 deg. 52′51″ N., 141 deg. 20′54″ E.
13. 11 deg. 38′25″ N., 147 deg. 44′42″ E.
14. 11 deg. 36′53″ N., 147 deg. 31′03″ E.
15. 11 deg. 31′48″ N., 146 deg. 55′19″ E.
16. 11 deg. 27′15″ N., 146 deg. 25′34″ E.
17. 11 deg. 22′13″ N., 145 deg. 52′36″ E.
18. 11 deg. 17′31″ N., 145 deg. 22′38″ E.
19. 11 deg. 13′32″ N., 144 deg. 57′26″ E.
20. 11 deg. 13′23″ N., 144 deg. 56′29″ E.
21. 10 deg. 57′03″ N., 143 deg. 26′53″ E.
22. 10 deg. 57′30″ N., 143 deg. 03′09″ E.
23. 11 deg. 52′33″ N., 142 deg. 15′28″ E.
24. 12 deg. 54′00″ N., 141 deg. 21′48″ E.
25. 12 deg. 54′17″ N., 141 deg. 21′33″ E.
26. 12 deg. 57′34″ N., 141 deg. 19′17″ E.
27. 13 deg. 06′32″ N., 141 deg. 12′53″ E.
Hawaii and Midway Island. The seaward limit of the exclusive economic zone is 200 nautical miles from the baselines from which the territorial sea is measured.
Johnston Atoll. The seaward limit of the exclusive economic zone is 200 nautical miles from the baselines from which the territorial sea is measured.
American Samoa. The seaward limit of the exclusive economic zone shall be determined by straight lines connecting the following points:
1. 11 deg. 02′17″ S., 173 deg. 44′48″ W.
2. 10 deg. 46′15″ S., 173 deg. 03′53″ W.
3. 10 deg. 25′26″ S., 172 deg. 11′01″ W.
4. 10 deg. 17′50″ S., 171 deg. 50′58″ W.
5. 10 deg. 15′17″ S., 171 deg. 15′32″ W.
6. 10 deg. 10′18″ S., 170 deg. 16′10″ W.
7. 10 deg. 07′52″ S., 169 deg. 46′50″ W.
8. 10 deg. 01′26″ S., 168 deg. 31′25″ W.
9. 10 deg. 12′44″ S., 168 deg. 31′02″ W.
10. 10 deg. 12′49″ S., 168 deg. 31′02″ W.
11. 10 deg. 52′31″ S., 168 deg. 29′42″ W.
12. 11 deg. 02′40″ S., 168 deg. 29′21″ W.
13. 11 deg. 43′53″ S., 168 deg. 27′58″ W.
14. 12 deg. 01′55″ S., 168 deg. 10′24″ W.
15. 12 deg. 28′40″ S., 167 deg. 25′20″ W.
16. 12 deg. 41′22″ S., 167 deg. 11′01″ W.
17. 12 deg. 57′51″ S., 166 deg. 52′21″ W.
18. 13 deg. 11′25″ S., 166 deg. 37′02″ W.
19. 13 deg. 14′03″ S., 166 deg. 34′03″ W.
20. 13 deg. 21′25″ S., 166 deg. 25′42″ W.
21. 13 deg. 35′44″ S., 166 deg. 09′19″ W.
22. 13 deg. 44′56″ S., 165 deg. 58′44″ W.
23. 14 deg. 03′30″ S., 165 deg. 37′20″ W.
24. 15 deg. 00′09″ S., 165 deg. 22′07″ W.
25. 15 deg. 14′04″ S., 165 deg. 18′29″ W.
26. 15 deg. 38′47″ S., 165 deg. 12′03″ W.
27. 15 deg. 44′58″ S., 165 deg. 16′36″ W.
28. 16 deg. 08′42″ S., 165 deg. 34′12″ W.
29. 16 deg. 18′30″ S., 165 deg. 41′29″ W.
30. 16 deg. 23′29″ S., 165 deg. 45′11″ W.
31. 16 deg. 45′30″ S., 166 deg. 01′39″ W.
32. 17 deg. 33′28″ S., 166 deg. 38′35″ W.
33. 17 deg. 31′45″ S., 166 deg. 42′07″ W.
34. 16 deg. 56′20″ S., 168 deg. 26′05″ W.
35. 16 deg. 37′55″ S., 169 deg. 18′19″ W.
36. 16 deg. 37′36″ S., 169 deg. 19′12″ W.
37. 16 deg. 34′58″ S., 169 deg. 55′59″ W.
38. 16 deg. 39′17″ S., 170 deg. 19′09″ W.
39. 16 deg. 48′46″ S., 171 deg. 12′29″ W.
40. 16 deg. 49′33″ S., 171 deg. 17′03″ W.
41. 16 deg. 13′29″ S., 171 deg. 37′41″ W.
42. 16 deg. 04′47″ S., 171 deg. 42′37″ W.
43. 15 deg. 58′20″ S., 171 deg. 46′06″ W.
44. 15 deg. 50′48″ S., 171 deg. 50′23″ W.
45. 15 deg. 50′12″ S., 171 deg. 50′44″ W.
46. 15 deg. 14′19″ S., 171 deg. 37′37″ W.
47. 15 deg. 01′58″ S., 171 deg. 31′37″ W.
48. 14 deg. 46′48″ S., 171 deg. 24′21″ W.
49. 14 deg. 27′02″ S., 171 deg. 14′46″ W.
50. 14 deg. 06′18″ S., 171 deg. 04′48″ W.
51. 14 deg. 03′28″ S., 171 deg. 03′06″ W.
52. 14 deg. 03′27″ S., 171 deg. 03′05″ W.
53. 14 deg. 03′05″ S., 171 deg. 02′53″ W.
54. 13 deg. 56′54″ S., 170 deg. 59′34″ W.
55. 13 deg. 54′30″ S., 170 deg. 58′20″ W.
56. 13 deg. 53′43″ S., 170 deg. 57′57″ W.
57. 13 deg. 50′40″ S., 170 deg. 56′24″ W.
58. 13 deg. 13′56″ S., 170 deg. 44′20″ W.
59. 13 deg. 09′05″ S., 170 deg. 42′39″ W.
60. 12 deg. 36′18″ S., 170 deg. 30′44″ W.
61. 12 deg. 36′11″ S., 170 deg. 31′35″ W.
62. 12 deg. 35′21″ S., 170 deg. 36′26″ W.
63. 12 deg. 29′47″ S., 171 deg. 08′24″ W.
64. 12 deg. 27′27″ S., 171 deg. 17′25″ W.
65. 12 deg. 23′34″ S., 171 deg. 25′18″ W.
66. 12 deg. 17′36″ S., 171 deg. 37′14″ W.
67. 12 deg. 14′01″ S., 171 deg. 44′25″ W.
68. 12 deg. 13′49″ S., 171 deg. 44′47″ W.
69. 12 deg. 05′27″ S., 172 deg. 00′55″ W.
70. 11 deg. 54′06″ S., 172 deg. 22′53″ W.
71. 11 deg. 53′57″ S., 172 deg. 23′09″ W.
72. 11 deg. 40′49″ S., 172 deg. 48′17″ W.
73. 11 deg. 26′56″ S., 173 deg. 08′46″ W.
74. 11 deg. 22′08″ S., 173 deg. 15′50″ W.
75. 11 deg. 02′28″ S., 173 deg. 44′37″ W.
76. 11 deg. 02′17″ S., 173 deg. 44′48″ W.
Palmyra Atoll-Kingman Reef. The seaward limit of the exclusive economic zone is 200 nautical miles from the baseline from which the territorial sea is measured, except that to the southeast of Palmyra Atoll and Kingman Reef the limit of the exclusive economic zone shall be determined by straight lines connecting the following points:
1. 7 deg. 55′04″ N., 159 deg. 22′29″ W.
2. 7 deg. 31′05″ N., 159 deg. 39′30″ W.
3. 7 deg. 09′43″ N., 159 deg. 54′35″ W.
4. 6 deg. 33′40″ N., 160 deg. 19′51″ W.
5. 6 deg. 31′37″ N., 160 deg. 21′18″ W.
6. 6 deg. 25′31″ N., 160 deg. 25′40″ W.
7. 6 deg. 03′05″ N., 160 deg. 41′42″ W.
8. 5 deg. 44′12″ N., 160 deg. 55′13″ W.
9. 4 deg. 57′25″ N., 161 deg. 28′19″ W.
10. 4 deg. 44′38″ N., 161 deg. 37′18″ W.
11. 3 deg. 54′25″ N., 162 deg. 12′56″ W.
12. 2 deg. 39′50″ N., 163 deg. 05′14″ W.
Wake Island. The seaward limit of the exclusive economic zone is 200 nautical miles from the baseline from which the territorial sea is measured, except that to the south of Wake Island the limit of the exclusive economic zone shall be determined by straight lines connecting the following points:
1. 17 deg. 56′15″ N., 169 deg. 54′00″ E.
2. 17 deg. 46′02″ N., 169 deg. 31′18″ E.
3. 17 deg. 37′47″ N., 169 deg. 12′53″ E.
4. 17 deg. 11′18″ N., 168 deg. 13′30″ E.
5. 16 deg. 41′31″ N., 167 deg. 07′39″ E.
6. 16 deg. 02′45″ N., 165 deg. 43′30″ E.
Jarvis Island. The seaward limit of the exclusive economic zone is 200 nautical miles from the baseline from which the territorial sea is measured, except that to the north and east of Jarvis Island, the limit of the exclusive economic zone shall be determined by straight lines connecting the following points:
1. 2 deg. 01′00″ N., 162 deg. 22′00″ W.
2. 2 deg. 01′42″ N., 162 deg. 01′35″ W.
3. 2 deg. 03′20″ N., 161 deg. 41′33″ W.
4. 2 deg. 02′30″ N., 161 deg. 36′20″ W.
5. 2 deg. 00′13″ N., 161 deg. 22′24″ W.
6. 1 deg. 50′18″ N., 160 deg. 20′42″ W.
7. 1 deg. 45′46″ N., 159 deg. 52′59″ W.
8. 1 deg. 43′31″ N., 159 deg. 39′27″ W.
9. 0 deg. 58′53″ N., 158 deg. 59′04″ W.
10. 0 deg. 46′58″ N., 158 deg. 48′24″ W.
11. 0 deg. 12′36″ N., 158 deg. 18′06″ W.
12. 0 deg. 00′17″ S., 158 deg. 07′27″ W.
13. 0 deg. 24′23″ S., 157 deg. 49′44″ W.
14. 0 deg. 25′44″ S., 157 deg. 48′43″ W.
15. 0 deg. 58′15″ S., 157 deg. 24′52″ W.
16. 2 deg. 13′26″ S., 157 deg. 49′01″ W.
17. 3 deg. 10′40″ S., 158 deg. 10′30″ W.
Howland and Baker IslandS., The seaward limit of the exclusive economic zone is a line 200 nautical miles from the baseline from which the territorial sea is measured, except to the southeast and south of Howland and Baker Islands the limit of the exclusive economic zone shall be determined by straight lines connecting the following points:
1. 0 deg. 14′30″ N., 173 deg. 08′00″ W.
2. 0 deg. 14′32″ S., 173 deg. 27′28″ W.
3. 0 deg. 43′52″ S., 173 deg. 45′30″ W.
4. 1 deg. 04′06″ S., 174 deg. 17′41″ W.
5. 1 deg. 12′39″ S., 174 deg. 31′02″ W.
6. 1 deg. 14′52″ S., 174 deg. 34′48″ W.
7. 1 deg. 52′36″ S., 175 deg. 34′51″ W.
8. 1 deg. 59′17″ S., 175 deg. 45′29″ W.
9. 2 deg. 17′09″ S., 176 deg. 13′58″ W.
10. 2 deg. 32′51″ S., 176 deg. 38′59″ W.
11. 2 deg. 40′26″ S., 176 deg. 51′03″ W.
12. 2 deg. 44′49″ S., 176 deg. 58′01″ W.
13. 2 deg. 44′53″ S., 176 deg. 58′08″ W.
14. 2 deg. 56′33″ S., 177 deg. 16′43″ W.
15. 2 deg. 58′45″ S., 177 deg. 26′00″ W.
Dated: August 10, 1995.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action makes editorial changes to current FAA regulations regarding temporary flight restrictions near space flight operations. Specifically, this action removes references to the “Department of Defense (DOD) Manager for Space Transportation System Contingency Support Operations.” This action does not change the intent of the existing rule.
This action is effective on November 4, 2004.
Sheri Edgett-Baron, Airspace and Rules, Office of Systems Operations and Safety, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-9354.
You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket Management System (DMS) Web page (
(2) Visiting the Office of Rulemaking's Web page at
(3) Accessing the Government Printing Office's Web page at
You can also get a copy by submitting a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the docket number, notice number, or amendment number of this rulemaking.
The FAA is issuing this action without notice and opportunity to comment under the authority of Section 4(a) of the Administrative Procedure Act, 5 United States Code (U.S.C.) 553(b). Section 553(b) allows the FAA to issue a final rule without notice and comment when the agency, for good cause, finds that notice and public procedure are “impracticable, unnecessary or contrary to the public interest.” In this instance, public comment and notice are unnecessary. The change in this final rule merely removes a reference to a department now out of existence. This change will not have a negative effect on safety and does not change the original intent of the rule. Because this is an editorial change, the FAA believes the public will not have a substantial interest in this rulemaking.
Currently, regulations prohibit aircraft from operating within certain areas except when authorized by Air Traffic Control (ATC) or the DOD Manager for Space Transportation System Contingency Support Operations. These temporary flight restricted areas are designated according to 14 CFR 91.143 and the information made available through the Notice to Airmen (NOTAM) system. Site launch operators and launch licensees are required through the conditions of their license, or their regulations, to comply with all FAA rules and NOTAMs. During the times that a Space Flight Operation NOTAM is in effect, ATC may authorize aircraft to fly in the designated space flight area. Any such authorization could result in a hold for a launch operator. The ATC, as a matter of practice, will coordinate with the entity managing the space flight operation. Entities conducting the space flight operation may be private or federal.
This action is an administrative update and merely removes a reference to the Department of Defense (DOD) manager for space transportation system contingency support operations. We have been informed by the DOD that this office no longer exists.
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advise about compliance with statutes and regulations within its jurisdiction. Therefore, any small entity that has a question regarding this document may contact their local FAA official, or the person listed under
There are no new requirements for information collection associated with this amendment. 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 Office of Management and Budget (OMB) control number.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practical. We have determined there are no ICAO Standards and Recommended Practices that correspond to these this rule.
Executive Order 12866 directs each Federal agency to propose or adopt a regulation only upon a reasoned determination the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act also requires agencies to consider international standards and, where appropriate, use them as the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Public Law 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 $100 million or more annually (adjusted for inflation.)
We determined this rule (1) has benefits which do justify its costs, is not a “significant regulatory action” as defined in the Executive Order and is not “significant” as defined in DOT's Regulatory Policies and Procedures; (2) will not have a significant impact on a substantial number of small entities; (3) will reduce barriers to international trade; and (4) does not impose an unfunded mandate on state, local, or
However, for regulations with an expected minimal impact the above-specified analyses are not required. The Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If it is determined that the expected impact is so minimal that the rule does not warrant a full evaluation, a statement to that effect and the basis for it is included in the rule. Since this rule is strictly administrative in nature involving editorial changes that do not change the intent of the existing rule, the expected outcome is to have a minimal impact.
The Regulatory Flexibility Act (RFA) of 1980, establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rational for their actions. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis in not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
This rule is an administrative change only involving editorial changes that do not change the intent of existing rules. It deletes a reference to the “Department of Defense (DOD) Manager for Space Transportation System Contingency Support Operations” which no longer exists. Consequently, the FAA certifies that the rule will not have a significant economic impact on a substantial number of small entities.
The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this rulemaking and has determined that it will have only a domestic impact and therefore no effect on any trade-sensitive activity.
The Unfunded Mandates Reform Act of 1995 (the Act), is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $120.7 million in lieu of $100 million.
This final rule does not contain such a mandate. The requirements of Title II do not apply.
The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on distributing power and responsibilities among the various levels of government. Therefore, we determined that this final rule does not have federalism implications.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this final rule qualifies for the categorical exclusion identified in paragraph 4(j) and involves no extraordinary circumstances.
The energy impact has been assessed in accordance with the Energy Policy and Conservation Act (EPCA Pub. L. 94-163, as amended (42 U.S.C. 6362) and FAA Order 1053.1). It has been determined that this final rule is not a major regulatory action under the provision of the EPCA.
Air traffic control, Aircraft, Airmen, Airports, Aviation safety.
49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101, 44111, 44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506'46507, 47122, 47508, 47528-47531, articles 12 and 29 of the Convention on International Civil Aviation (61 stat. 1180).
When a Notice to Airmen (NOTAM) is issued in accordance with this section, no person may operate any aircraft of U.S. registry, or pilot any aircraft under the authority of an airman certificate issued by the Federal Aviation Administration, within areas designated in a NOTAM for space flight operation except when authorized by ATC.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA is proposing to remove the incorporation by reference of certain FAA Orders and terminal aeronautical charts from the provisions of 14 CFR part 97 and incorporate by reference instead instrument procedures that are documented on FAA forms. The FAA also proposes a conforming amendment in 14 CFR part 71. This change would ensure that the appropriate material is incorporated in the FAA's regulations.
Send your comments on or before November 4, 2004.
You may send comments identified by docket number FAA-200X-XXXXX using any of the following methods:
•
•
•
•
•
For more information on the rulemaking process, see the
Thomas E. Schneider, AFS-420, Federal Aviation Administration, P.O. Box 25082, Oklahoma City, OK 73125; telephone (405) 954-5852; facsimile (405) 954-2528; e-mail
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The FAA also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA asks that you send two copies of written comments.
The FAA will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the
Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed late if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.
If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. The FAA will stamp the date on the postcard and mail it to you.
You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket Management System (DMS) Web page (
(2) Visiting the Office of Rulemaking's Web page at
(3) Accessing the Government Printing Office's Web page at
You can also get a copy by submitting a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Be sure to identify the docket number, notice number, or amendment number of this rulemaking.
On December 17, 2002, the FAA published a Notice of Proposed Rulemaking (NPRM) titled “Area Navigation (RNAV) and Miscellaneous Amendments” (67 FR 77326; Dec. 17, 2002). In that NPRM, the FAA proposed to revise § 97.20 to remove the incorporation by reference (IBR) of standard instrument approach procedures as described on FAA Forms 8260-3, 8260-4 and 8260-5. The FAA instead proposed to incorporate by reference into § 97.20 FAA Orders 8260.3B,
On April 8, 2003, the FAA adopted the final rule titled “Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points” (68 FR 16943; April 8, 2003), which adopted the proposed amendments to 14 CFR 97.20. Upon staff review, the FAA concluded that the incorporation by reference of FAA Orders 8260.3B and 8260.19C and the terminal aeronautical charts was in error and resulted in the inappropriate designation of certain material as regulatory.
Specifically, FAA Order 8260.3 provides agency policy and standardized methods for designing instrument flight procedures. The FAA follows this policy for the preparation, approval, and promulgation of terminal instrument procedures. FAA Order 8260.19, provides guidance for administering the Flight Procedure and Airspace Program. It also defines responsibilities, establishes criteria and provides standards to assure effective and orderly processing of all types of procedure actions.
Section 91.175(a) requires a pilot to use an instrument procedure prescribed in part 97, unless otherwise authorized by the FAA, when it is necessary to conduct an instrument letdown to a civil airport. Consistent with this requirement, the FAA, via rulemaking, adopts instrument procedures by amending § 97.20. While the adopted instrument procedures become part of § 97.20, the agency policy and criteria for designing, preparing and approving the procedure should not become part of § 97.20, as they are not regulatory actions and should not be incorporated by reference into part 97. Similarly, it is not appropriate to incorporate by reference terminal aeronautical charts, as those charts merely depict the instrument procedures for use by the pilot.
The FAA is proposing to revise § 97.20 by removing the IBR of FAA Orders 8260.3 and 8260.19. Additionally, the IBR of terminal aeronautical charts would be removed. The FAA instead would incorporate by reference the instrument procedures detailed on FAA Forms 8260-3, 8260-4, 8260-5 and 8260-15A into § 97.20.
The proposed text for § 97.20 would set forth the FAA Forms that contain the instrument procedures that would be IBR, and provide information to the public as to where the procedures may be examined. It also provides information on the availability of aeronautical charts depicting standard instrument procedures.
The FAA currently coordinates all new and revised TERPS criteria and procedures in Orders 8260.3 and 8260.19 with those organizations affected, both public and private, in accordance with the coordination process contained in FAA Order 1320.1,
The FAA proposes to delete paragraph (b), and the existing paragraph (c) would be redesignated as paragraph (b). This section would conform to § 97.20, which would remove the IBR of FAA Orders 8260.3 and 8260.19.
The Director of the Federal Register must approve all rules that incorporate by reference material into the Code of Federal Regulations. If this rule is adopted as proposed, the FAA will submit a final rule to the Director of the Federal Register seeking approval to incorporate by reference into § 97.20 the instrument procedures on FAA forms.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new information collection requirement associated with this proposed rule.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations.
Executive Order 12866 directs each Federal agency to propose or adopt a regulation only upon a reasoned determination the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act also requires agencies to consider international standards and, where appropriate, use them as the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Public Law 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 private sector, of $100 million or more annually (adjusted for inflation).
We determined this proposed rule (1) has benefits that justify its costs, is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures; (2) will not have a significant economic impact on a substantial number of small entities; (3) will not have any effect on barriers to international trade; and (4) does not impose an unfunded mandate on state, local, or tribal governments, or on the private sector.
However, for regulations with an expected minimal impact the above-specified analyses are not required. The Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If it is determined that the expected impact is so minimal that the proposal does not warrant a full evaluation, a statement to that effect and the basis for it is included in proposed regulation. Since this NPRM is administrative in nature removing inappropriate interpretation by reference material from FAA regulations and adding appropriate incorporation by reference material, these changes will not impact the integrity of existing rules. As a result, this proposed rule will have a minimal economic impact. The FAA requests comments with supporting justification regarding the FAA determination of minimal impact.
The Regulatory Flexibility Act of 1980 (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and explain the rationale for their actions. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a proposed or final rule is not expected
This proposed rule is administrative in nature correcting an earlier action that resulted in an inappropriate designation of certain material as regulatory. Consequently, the FAA certifies the proposed rule will not have a significant economic impact on a substantial number of small entities.
The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this rulemaking and has determined that it will impose the same costs on domestic and international entities and thus have a neutral trade impact.
The Unfunded Mandates Reform Act of 1995 (the Act) is intended, among other things to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation adjusted value of $120.7 million in lieu of $100 million.
This NPRM does not contain such a mandate. The requirements of Title II of the Act do not apply.
The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. The FAA has determined that this action 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, and therefore would not have federalism implications.
FAA Order 1050.1D defines FAA actions that may be categorically excluded from preparation of a National Environmental Policy Act (NEPA) environmental impact statement. In accordance with FAA Order 1050.1D, appendix 4, paragraph 4(j), this proposed rulemaking action qualifies for a categorical exclusion.
The FAA has analyzed this NPRM under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The FAA has determined that it is not a significant energy action under the executive order because it is not a significant regulatory action under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
Airspace, Navigation (air).
Air traffic control, Airports, Navigation (air), Weather.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of title 14, Code of Federal Regulations, as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR 1959-1963 Comp., p 389.
2. Amend § 71.11 by removing paragraph (b) and redesignating paragraph (c) as paragraph (b).
3. The authority citation for part 97 continues to read as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, and 44721-44722.
4. Revise § 97.20 to read as follows:
(a) This subpart prescribes standard instrument procedures based on the criteria contained in FAA Order 8260.3, U.S. Standard for Terminal Instrument Procedures (TERPs), and other related Orders in the 8260 series that also address instrument procedure design criteria.
(b) Standard instrument procedures and associated supporting data adopted by the FAA are documented on FAA Forms 8260-3, 8260-4, 8260-5, and 8260-15A, and were approved for incorporation by reference by the Director of the Federal Register pursuant to 5 U.S.C. 552(a) and 1 CFR Part 51. The standard instrument procedures are available for examination at the Rules Docket (AGC-200) and at the National Flight Data Center, 800 Independence Avenue, SW., Washington, DC 20590, and at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(c) Standard instrument procedures are depicted on aeronautical charts published by the FAA National Aeronautical Charting Office and these charts are available for purchase from the FAA's National Aeronautical Charting Office, Distribution Division, 6303 Ivy Lane, Suite 400, Greenbelt, MD 20770.