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Office of Federal Housing Enterprise Oversight, HUD.
Final amendments.
The Office of Federal Housing Enterprise Oversight (OFHEO) is issuing amendments to its corporate governance regulation establishing corporate governance standards applicable to the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation in order to further promote the safety and soundness of their operations.
Effective June 6, 2005.
Isabella W. Sammons, Associate General Counsel, telephone (202) 414-3790 (not a toll-free number); Office of Federal Housing Enterprise Oversight, Fourth Floor, 1700 G Street, NW., Washington, DC 20552. The telephone number for the Telecommunications Device for the Deaf is (800) 877-8339.
Title XIII of the Housing and Community Development Act of 1992, Pub. L. 102-550, titled the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Act) (12 U.S.C. 4501
In furtherance of its supervisory responsibilities, in 2002, OFHEO published a final corporate governance regulation, taking into consideration comments filed in response to an earlier proposed regulation.
On June 7, 2003, the Director of OFHEO ordered a special examination of the events leading to the public announcement by Freddie Mac of an audit of prior year financial statements and the termination, resignation, and retirement of three principal executive officers of Freddie Mac. The
Through ongoing oversight and supervision of both Enterprises and its special examinations, OFHEO has gained insights as to the need for enhancements or adjustments in the existing corporate governance standards for both Enterprises. Thus, OFHEO proposed to add prudential requirements to its corporate governance regulation that would have general applicability consistent with the practices recommended or required by the
OFHEO also notes that the Enterprises are privately owned but federally chartered companies. Created by Congress to facilitate liquidity and stability in mortgage markets and to advance affordable housing, they receive in exchange special benefits from their Government sponsorship which makes them unlike many other large financial institutions in some significant respects. Since their creation, the Enterprises have grown to become two of the largest and highly leveraged financial companies in the world in terms of assets, and together they control a majority share of the secondary market for conforming mortgages. Yet they are relatively small in terms of their total numbers of employees, and have a unique board
With respect to other developments, the New York Stock Exchange(NYSE) issued amendments to its corporate governance rules that are applicable to companies listed on the NYSE, including the listed Enterprises.
Since registration, Fannie Mae files periodic financial disclosures with the Commission as required by the Securities Exchange Act of 1934 and is subject to the requirements of the SOA and implementing rules and regulations of the Commission.
The proposed amendments were published on April 12, 2004 (69 FR 19126). OFHEO received comments from 19 commenters as follows: (1) An individual shareholder of an Enterprise; (2) an individual; (3) Ernst & Young, an accounting firm; (4) America's Community Bankers, a trade association representing community banks; (5) National Association of Corporate Directors, an educational, publishing, and research organization on board leadership and a membership association for boards, directors, director candidates, and board advisers; (6) PriceWaterhouseCoopers, an accounting firm; (7) Business Roundtable, an association of chief executive officers of corporations; (8) Chamber of Commerce, a business federation; (9) American Institute of Certified Public Accountants, a professional association of certified public accountants; (10) KPMG, an accounting firm; (11) Deloitte & Touche, an accounting firm; (12) Freddie Mac; (13) Consumer Mortgage Coalition, a trade association of national mortgage lenders, servicers, and service providers; (14) an individual, Dean's Professor of Financial Regulatory Policy, University of Massachusetts-Amherst; (15) Nominating and Corporate Governance Committee of Fannie Mae; (16) FM Policy Focus, a coalition of six financial services and housing related trade associations; (17) Independent Community Bankers of America, a trade association of community banks; (18) Mortgage Insurance Companies of America, a trade association representing the private mortgage insurance industry; and, (19) Fannie Mae.
OFHEO proposed a section that would add requirements and consolidate existing requirements relating to the board of directors of an Enterprise. OFHEO carefully considered the comments provided.
One provision would require an Enterprise to prohibit the chairperson of the board from also serving as chief executive officer of the Enterprise. Often drawing on the experience and circumstances of non-government sponsored companies, many commenters urged that OFHEO leave this matter to the determination of the board of directors or suggested that a separate chairperson and chief executive officer is not in the best interests of the shareholders. The commenters who urged such a result did not focus on the impact of the unique characteristics of the Enterprises, such as their size, public mission, insulation from full market discipline and distinct board structure—characteristics that counsel against the concentration of power in a single chairperson/chief executive officer. Likewise, commenters did not make a substantial case for disregarding the lessons learned in the special examination of Freddie Mac about the risks of consolidating the chairperson and chief executive officer positions.
OFHEO believes that separating the functions of chairperson and chief executive officer is prudent for safe and sound operations of the Enterprises because it strengthens board independence and oversight of management on behalf of shareholders consistent with the public mission of the Enterprises. Separating the role of chief executive officer would similarly clarify the role and responsibility of the individual charged with leading each Enterprise's management team.
OFHEO notes with approval that each Enterprise has now formally agreed to separate the positions of chairperson of the board and chief executive officer. Accordingly, the provision is not included in the final regulation at this time.
A requirement that would limit the service of a board member to no more than 10 years or past the age of 72, whichever comes first, was proposed by OFHEO. One commenter approved of the limits, some commenters disapproved of the limits as undermining board leadership, and other commenters recommended transition periods or the ability to seek a waiver. Another commenter requested clarification that the age and term limits be applied as of the date of the meeting of the shareholders.
OFHEO found that a limit on years of service and age for the board members promotes an appropriate level of functioning of the board, strengthens the diversity and expertise of the board, and enhances its ability to respond to the unique, but constantly evolving business environment in which each Enterprise operates.
In response to comments, OFHEO is making changes to the provision to clarify that a board member who meets the age and term limits as of the date of his or her election or appointment may serve his or her full term. In addition, express language has been added to provide for a waiver by the Director, for good cause consistent with the supervisory responsibilities of OFHEO.
OFHEO proposed that a majority of the seated board members of an Enterprise be independent under the rules of the NYSE.
One commenter recommended that OFHEO should supplement the NYSE standards with additional standards. OFHEO determined that the NYSE rule appropriately covers what constitutes independence. As expressly provided by proposed § 1710.30, discussed below, OFHEO has the authority to provide for a different definition of the term “independent board member” or to provide additional guidance covering general or specific circumstances, if necessary in light of the special characteristics of the two Enterprises, including but not limited to circumstances where a board member has prior affiliation with an accounting firm currently serving as auditor of the Enterprise.
Another commenter recommended that the independence standard apply to all board members. Section 1710.11(a)(3), as proposed, does not differentiate between elected and presidentially-appointed board members. It was also requested that the provision reflect that the NYSE rules apply as changed from time to time by the NYSE. A technical revision has been made to the provision expressly to address this point. Finally, one commenter recommended that the term “seated” be defined. The term is intended to encompass those elected or appointed board members who serve on the board; OFHEO, however, does not believe it useful at this time to define further the term in the regulation.
The proposal would require that the board of directors of an Enterprise meet at least twice a quarter to carry out its obligations and duties under applicable laws, rules, regulations, and guidelines. One commenter supported the frequency requirement while another commenter suggested that this requirement amounts to micromanagement of the Enterprises. Other commenters suggested that requiring eight meetings a year, with at least one each calendar quarter was more appropriate. Another commenter suggested that the number of meetings be set in the aggregate, but the board be permitted to schedule meetings in such quarters as the board would determine. OFHEO determined that the number of meetings is reasonable and that spreading them over the course of the fiscal year is prudent.
Given the special nature of the Enterprises and the oversight required, OFHEO disagrees that the frequency requirement amounts to micromanagement or that requiring eight meetings a year is inappropriate. Meetings must be frequent enough to ensure that the board of directors can exercise adequate oversight of management. OFHEO determined in its review of Freddie Mac that the meetings of the board of directors were too infrequent to address the issues presented by the company, given its status, size, and complexity. OFHEO determined that to provide flexibility and to avoid practical issues such as requests for waivers and related procedural matters, the proposal would be adopted with the deletion of the requirement that two meetings occur per quarter. OFHEO has determined that the board of directors should meet no less than eight times a year and no less than once a calendar quarter.
OFHEO received supporting comments on the provisions of § 1710.11(b)(2) and (3) and has issued them without change. The provisions require that the non-management directors of an Enterprise meet at regularly scheduled executive sessions without management participation in order to promote open discussion.
As proposed, § 1710.11(b)(4) would require that management of an Enterprise provide board members with information that is adequate and appropriate considering what a
The proposal would require, at least annually, that the Enterprise board of directors review requirements of laws, rules, regulations, and guidelines that are applicable to its activities and duties, with appropriate professional assistance.
OFHEO proposed to add a requirement to § 1710.11, redesignated as § 1710.12, that a committee of the board of directors of an Enterprise meet as frequently as necessary to carry out its obligations and duties and to exercise adequate oversight of management.
The current corporate governance regulation requires that an Enterprise establish audit and compensation committees of the board of directors. OFHEO proposed to add a requirement that an Enterprise establish a nominating/corporate governance committee consistent with appropriate application of the final NYSE rules
As proposed, the amended section also would require that Enterprise audit committees comply with the requirements set forth in section 301 of the SOA, which address, among other things, audit committee responsibilities, independence, establishment of complaint procedures, and authority to engage advisers, as well as adequate funding of the committee. The reference to the SOA and the final NYSE rules would not restrict the authority of OFHEO to mandate additional requirements appropriate to the Enterprises” situations and their oversight, as provided under § 1710.30.
OFHEO received one comment on this section that recommended that the provision should be made co-extensive with the corresponding NYSE rules issued pursuant to the SOA, which are incorporated by reference, as those rules may be interpreted or changed from time to time by the responsible bodies. OFHEO has determined that the section, as proposed, has incorporated by reference the appropriate NYSE and SOA section and that, as appropriate, OFHEO would look to the NYSE interpretation of the NYSE rules in determining whether an Enterprise was in compliance with this section. OFHEO has determined that it is unnecessary to state this in the section and § 1710.12 is adopted as proposed.
OFHEO proposed to amend § 1710.12, redesignated as § 1710.13, by adding language that would prohibit compensation in excess of what is appropriate for these government sponsored enterprises, in addition to what is reasonable (as the section currently reads) and consistent with long-term goals that are addressed in the proposed language of the section.
Two commenters objected to the word “appropriate” in that it is not contained in 12 U.S.C. 4518, the statutory provision that requires the Director to prohibit an Enterprise from providing compensation to any executive officer that is not reasonable and comparable with compensation for employment in other similar businesses. The proposed provision is not intended to implement Section 4518, which is implemented by the OFHEO executive compensation regulation at 12 CFR part 1770. Section 1710.13 addresses not only certain covered executive officers, but as well board members and employees, and has as its primary focus the Enterprises—safety and soundness. Although compensation may be reasonable from some perspectives, as in not generally excessive or extreme, it may not be appropriate or suitable under specific circumstances. Thus, OFHEO has determined not to delete the word “appropriate.”
While the circumstances involved and the foundation for addressing compensation in the corporate governance regulation may differ from those found in the area of executive compensation, the standards used by OFHEO for determining unreasonable, excessive, or inappropriate compensation are the same. In looking to reasonable compensation, OFHEO must consider the totality of circumstances for an Enterprise. This includes inquiry into compensation for comparable positions at other firms, to the degree they exist, along with less formulaic items such as the unique nature of the Enterprises, the responsibilities and duties of the individual involved, and the environment and circumstances that exist when the compensation is provided to the individual. Thus a numerical comparison alone might be inadequate for OFHEO to discharge its obligations in considering compensation. Factors such as an Enterprise's conduct, business challenges, compliance with the mission of the Enterprise, compliance with law and regulation, creation of profit or loss, leadership, suitability of incentive structures, and other relevant matters would be important to making a compensation determination under either the corporate governance rules or the executive compensation rules. In both instances, safety and soundness underlies the goals of Congress expressed in the enabling statute of OFHEO and Congress has clearly indicated that compensation may represent a safety and soundness
Section 1710.13(a), as proposed, is further intended to underscore the impropriety of compensation incentives that excessively focus the attention of management and employees on an Enterprise's short-term earnings performance. Incentives focused primarily on short-term earnings may lead to improper conduct at an Enterprise, as OFHEO discovered in its investigation of Freddie Mac.
One commenter recommended that executive incentives should expressly include no rewards for undue reliance on the Enterprise subsidy or any activity that would enlarge it. OFHEO has determined not to adopt that recommendation.
Section 1710.13(b) proposed to require the chief executive officer and chief financial officer to reimburse the Enterprise if the Enterprise is required to prepare an accounting restatement due to the material noncompliance of the Enterprise, as a result of misconduct, with any financial reporting requirement. Reimbursement would be made in accordance with section 304 of the SOA. Section 304 of the SOA would require reimbursement of (1) any bonus or other incentive-based, equity or option-based compensation received by such person from the Enterprise during the 12-month period following the first public issuance of the financial document embodying such financial reporting requirement; and (2) any profits realized from the sale or disposition of securities of the Enterprise that such person owned or controlled during that 12-month period. The provisions of the proposed paragraph would in no manner limit the authority of OFHEO to take any other appropriate supervisory action against an Enterprise or any of its board members or executive officers pursuant to its enforcement authorities. Enforcement authorities of OFHEO include restitution that may be applied to situations involving conduct subject to reimbursement.
One commenter asked that the reimbursement requirement be clarified to apply to restatement of financial reporting under the securities laws. OFHEO has clarified the language to state so expressly and to note that this section does not limit other OFHEO remedial powers that may be brought to bear for failures to make adequate disclosures. Another commenter suggested that the reimbursement provision is not necessary in view of the broad remedial and civil money penalty powers of OFHEO. If it is retained, the commenter requested that the requirement should apply to Freddie Mac after it has returned to the timely filing of financial statements and completed the voluntary registration of its securities. OFHEO has determined to retain the reimbursement provision as proposed with certain clarifying and technical changes.
OFHEO proposed to amend § 1710.14 by revising the section heading to read “Code of Conduct and Ethics,” and by referencing the standards set forth under section 406 of the SOA. Section 406 provides that the “code of conduct and ethics” include standards as are reasonably necessary to promote (1) honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships; (2) full, fair, accurate, timely, and understandable disclosure in the periodic reports required to be filed by the issuer of the report; and (3) compliance with applicable governmental rules and regulations. In conducting its supervisory examination process, OFHEO would ensure the adequacy and appropriateness of the code of conduct and ethics of an Enterprise. In addition, OFHEO proposed that, at least every three years, an Enterprise must review the adequacy of its code of conduct and ethics to ensure that it is consistent with practices appropriate for the Enterprise.
A few commenters recommended that OFHEO should require the code of conduct and ethics to include the public mission of the Enterprises, charter compliance, and adherence to new program prior approval standards and affordable housing goals. OFHEO has determined compliance with law, regulation, and rules are appropriately addressed in other sections of the regulation.
Another commenter urged that OFHEO address situations where an Enterprise may use its unique characteristics to exact terms and conditions from service providers. That commenter also urged that the code should bar retaliation against entities for political purposes. OFHEO has determined not to adopt these recommendations. OFHEO notes that such conduct could be determined to violate existing safety and soundness rules and need not be subject to a special rule that could have unintended consequences that may result from unnecessary definition.
One commenter recommended a reference to the NYSE rules requiring a code of conduct and NASDAQ rules relating to review and approval of related party transactions; another commenter recommended express reference to regulations issued by the Commission implementing section 406 of the SOA. After considering these comments, OFHEO determined to clarify the section by adding language requiring the code of conduct and ethics to include standards that comply with applicable law, rules, and regulations, in addition to the express reference to section 406 of the SOA. OFHEO is adding language that expressly incorporates section 406 along with any amendments that may be made from time to time.
Another recommendation was that OFHEO should require more frequent reviews and that OFHEO require the codes to be revised whenever a new market practice or a substantive change in law or rule defines new standards. These recommendations are addressed by the provision, as modified, in that the code of conduct and ethics must include standards that comply with applicable law, rules, and regulations. In addition, OFHEO has clarified the language concerning review of the code to state expressly that after review of the code for consistency with practices appropriate for the Enterprise, the code
Section 1710.15 of the current corporate governance regulation establishes appropriate standards for the conduct and responsibilities of the board of directors of an Enterprise. Given the special situation of the Enterprises, OFHEO proposed to amend § 1710.15 by adding a requirement with respect to the conduct and responsibilities of the board of directors. The proposal would require that the Enterprise board of directors must remain reasonably informed of the condition, activities, and operations of the Enterprise. The proposal would also describe the responsibility of the board of directors to have in place policies and procedures to assure its oversight of corporate strategy, major plans of action, risk policy, programs for legal and regulatory compliance, and corporate performance to include prudent plans for growth and allocation of adequate resources to manage operations risk, so as to promote safety and soundness.
One commenter recommended that OFHEO expressly provide that risk policy mean not only consideration of written policies and procedures but also that the Enterprises comply with such policies and that the board of directors has an affirmative duty to ensure that risk policies are enforced. OFHEO has determined not to adopt this recommendation because the focus of § 1710.15 is on policies and procedures designed to assure compliance. Risk management compliance is appropriately addressed in § 1710.19, discussed below.
Proposed § 1710.15 adds a provision expressly addressing the oversight responsibility related to extensions of credit to board members and executive officers, consistent with the proposed § 1710.16, discussed below. In conducting its supervisory examination process, OFHEO would ensure that adequate policies and procedures are in place. One commenter recommended that this provision be deleted because it is purportedly a narrower substantive obligation than the other oversight requirements and is otherwise addressed elsewhere in the regulation. OFHEO disagrees that it is inappropriate to list the board's oversight responsibility of limits on extensions of credit. Although § 1710.16 prohibits certain extensions of credit, responsibility for oversight is not addressed in that section. OFHEO has determined to adopt the provision as proposed.
OFHEO proposed to add § 1710.16, which would limit extensions of credit to Enterprise board members and executive officers as provided generally by section 402 of the SOA. As adopted here, section 402 of the SOA would prohibit an Enterprise from directly or indirectly, including through any subsidiary, extending credit or arranging for the extension of credit in the form of a personal loan to or for any board member or executive officer of the Enterprise. OFHEO believes that it is appropriate to conform the OFHEO regulation to that of other financial institution regulators in addressing extensions of credit by companies they supervise, as the proposed section does.
Two commenters requested that OFHEO delete the reference to any subsidiary of an Enterprise because such reference implies that OFHEO intends that the Enterprises establish subsidiaries. OFHEO sees no such implication in the proposed language. OFHEO has determined not to adopt this recommendation; the intent of the language is to apply to the Enterprises the provisions of section 402 of the SOA.
Another commenter requested an express reference to interpretations of section 402 of the SOA by the Commission. OFHEO will look to the interpretations of the Commission but has determined that a modification of the proposed language is unnecessary; language has been added, however, to clarify that the reference to section 402 of the SOA includes amendments as made from time to time. With this technical modification, OFHEO has issued § 1710.16 as proposed.
OFHEO proposed to add § 1710.17, which would require Enterprise compliance with section 302 of the SOA that mandates certain certifications of quarterly and annual reports by the chief executive officer and chief financial officer of an Enterprise. The proposed section would conform the OFHEO supervisory regime to those of other financial regulators, as OFHEO has determined is appropriate. The proposal would assure review, endorsement, and undertaking of responsibility by individuals required to certify public disclosures. It would not limit OFHEO from requiring certifications by additional parties or additional disclosures.
One commenter expressly supported the proposal. Another commenter requested that OFHEO clarify that the proposed provision would not require Freddie Mac to submit certifications under section 302 of the SOA until Freddie Mac completes the voluntary registration process. OFHEO has determined to retain the provision as proposed.
OFHEO proposed to add § 1710.18, which would prohibit an Enterprise from accepting audit services from an external auditor if either the lead (or coordinating) external audit partner, who has primary responsibility for the external audit of the Enterprise, or the external audit partner, who has responsibility for reviewing the external audit, has performed audit services for the Enterprise in each of the five previous fiscal years. This prohibition relates to section 203 of the SOA that makes it unlawful for a registered public accounting firm to provide audit services to a public company by such audit partners in excess of five previous fiscal years.
One commenter recommended that OFHEO incorporate section 203 of the SOA, as interpreted by the Commission, in the provision. OFHEO has determined not to adopt that recommendation at this time. OFHEO looks to its existing safety and soundness requirements and its supervisory program to assure that the Enterprises mitigate risk by the use of service vendors that meet standards for reliability and recourse.
Another commenter recommended that the provision require rotation of other audit partners involved in audits of an Enterprise after seven years. OFHEO has determined not to adopt this recommendation, but notes that in
OFHEO also proposed a requirement that, at least every ten years, an Enterprise must change its external auditing firm. Many commenters objected to the proposed requirement to change the external auditing firm every ten years on the basis that such a change would be counterproductive because of loss of expertise and associated increased risk of error and fraud, lack of support for such a regulation in current literature or Federal statute, and impracticality in light of the existence of only four large accounting firms available for the work attendant to a government sponsored enterprise. The commenters opined that the safeguards of the SOA, in terms of audit partner rotations and the oversight and audit role of the Public Company Accounting Oversight Board, are adequate.
OFHEO disagrees with these commenters with respect to the Enterprises. In light of its special examination of Freddie Mac and its ongoing supervision of both Enterprises, OFHEO has determined to require Fannie Mae and Freddie Mac to adhere to certain standards to assure safe and sound operations, even though they may represent different standards than those generally applied to non-government sponsored companies or other large regulated companies. Created by Congress to facilitate liquidity and stability in mortgage markets and to advance affordable housing, the Enterprises receive special benefits from government sponsorship making them unlike other large companies in significant respects. The business of the Enterprises is limited by statute; their hedge accounts require intensive and complicated accounting; they have a unique mission; they must undertake specialized tasks by law; and, they are regulated apart from other companies due to their unique structure, that is, a single regulator for only two entities. Further, the Enterprises have grown to become two of the largest and highly leveraged financial companies in the world in terms of assets, controlling together a majority share of the secondary market for conforming mortgages. In addition, due to the government sponsorship, the Enterprises are not as susceptible to certain forms of market discipline. All of these differences and unique features demand full and accurate accounting, accounting that is essential for safe and sound operations and disclosures that assure access to capital markets. These distinctive characteristics would support the determination that Fannie Mae and Freddie Mac should adhere to certain policies that may not be applicable to other companies, including large regulated companies.
The existence of long term accounting relationships has been demonstrated, in the review of the Enterprises by OFHEO, to pose specific risks. The difficulty of changing auditing firms would not outweigh the finding of threatened harm that may be occasioned by certain long term audit relationships. Freddie Mac maintained the same accounting relationship for over 32 years and its accounting problems were only uncovered after it changed auditors in 2002. In 2005, Fannie Mae has announced that it will replace its auditor with which it has had a relationship for over 36 years.
A central argument of commenters was that the required change undermines the pressure on an audit firm, that is, if a firm has a contract and produces less than satisfactory work, then a termination of that contract brings the firm into the public eye. Also, the requirement to change firms, it is argued, removes the incentive to move against a firm as the requirement would change the firm at a set point. This, the argument goes, would remove positive pressures on the engaging company and the auditing firm. OFHEO disagrees with respect to the Enterprises. Further, in the case of the Enterprises, Congress saw fit to create a regulator to oversee the operations of the firms, including accounting standards and external audit relationships. OFHEO has the ability to act in the case of a poorly performing Enterprise auditor at any time, not just at the time of a planned change.
Further, it should be noted that OFHEO does not consider the existence at present of four major auditing firms to be an insurmountable impediment. With the proper safeguards, OFHEO would consider appropriate both Enterprises using the same auditing firm concurrently, thereby contributing to the options open to an Enterprise.
However, because both Enterprises have now changed audit firms, the provision is not included in this final regulation.
Proposed § 1710.19 would require an Enterprise to establish and maintain a compliance program and a risk management program. OFHEO believes that the establishment and maintenance of compliance and risk management programs are essential for the continued safe and sound operations of the Enterprises.
Commenters generally supported the proposal. One commenter suggested that OFHEO consider whether there should be a direct reporting relationship to the board; others recommended more flexibility with respect to the structure and reporting scheme of the compliance and risk management programs. OFHEO has determined to retain the requirement that the chief compliance officer and chief risk officer report directly to the chief executive officer of the Enterprise, but has clarified that the regular reporting of such officers may be made to the board of directors or to an appropriate committee thereof. OFHEO has made other clarifying and technical changes to make the section easier to read.
OFHEO also proposed that if an Enterprise deregisters or does not register its common stock with the Commission, the Enterprise must comply with sections 301, 302, 304, 402, and 406 of the SOA, subject to such additional requirements as provided by § 1710.30.
One commenter requested that OFHEO clarify that this provision would not apply to a situation in which an Enterprise deregisters its securities and that § 1710.30 should not be referenced in § 1710.19. OFHEO disagrees and has determined to adopt § 1710.19(c) as proposed, with minor clarifying and technical changes.
OFHEO proposed to move provisions of its existing regulation and to maintain similar treatment for new provisions in § 1710.30 to make clear that OFHEO, in referencing and employing other
Some commenters noted that OFHEO would be required to publish any modifications for notice and comment under the Administrative Procedure Act. OFHEO is clarifying the provision by adding language that would make clear that OFHEO would make modifications to its requirements pursuant to 5 U.S.C. 553. Section 553 requires notice and comment of a substantive regulation with certain exceptions, including where the regulation would grant or recognize an exemption or relieve a restriction, or for good cause found by the agency.
OFHEO has determined to issue the final amendments to its corporate governance regulation at 12 CFR 1710. The final regulation incorporates provisions adopted as proposed as well as modifications that enhance clarity or craft a more workable regulation, many of the modifications result from comments that provided useful legal and operational insights. The final regulation continues to build the OFHEO supervisory infrastructure and to meet the ongoing efforts of OFHEO to operate in a transparent manner. The final regulation should provide greater certainty for the Enterprises regarding regulatory expectations. Appropriate corporate governance and appropriate corporate governance supervision help ensure the continued safe and sound operation of the Enterprises as directed by Congress.
The amendments to the corporate governance regulation are not classified as an economically significant rule under Executive Order 12866 because they would not result in an annual effect on the economy of $100 million or more or a major increase in costs or prices for consumers, individual industries, Federal, state, or local government agencies, or geographic regions; or have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or foreign markets. Accordingly, no regulatory impact assessment is required. Nevertheless, the final amendments were submitted to the Office of Management and Budget for review under other provisions of Executive Order 12866 as a significant regulatory action.
Executive Order 13132 requires that Executive departments and agencies identify regulatory actions that have significant federalism implications. A regulation has federalism implications if it has substantial direct effects on the states, on the relationship or distribution of power between the Federal Government and the states, or on the distribution of power and responsibilities among various levels of government. The Enterprises are federally chartered corporations supervised by OFHEO. The corporate governance regulation and the amendments thereto set forth minimum corporate governance standards with which the Enterprises must comply for Federal supervisory purposes. The corporate governance regulation requires that an Enterprise elect a body of state corporate law or the Revised Model Corporation Act to follow in terms of its corporate practices and procedures. The corporate governance regulation and the amendments thereto do not affect in any manner the powers and authorities of any state with respect to the Enterprises or alter the distribution of power and responsibilities between Federal and state levels of government. Therefore, OFHEO has determined that the corporate governance regulation and the amendments thereto have no federalism implications that warrant the preparation of a Federalism Assessment in accordance with Executive Order 13132.
The Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Government Sponsored Enterprises.
12 U.S.C. 4513(a) and 4513(b)(1).
(a)
(ii)
(2)
(b)
(2)
(3)
(4)
(5)
(b)
(c)
(1) Audit committee;
(2) Compensation committee; and
(3) Nominating/corporate governance committee.
(a)
(b)
(a)
(b)
(b)
(1) Corporate strategy, major plans of action, risk policy, programs for legal and regulatory compliance and corporate performance, including but not limited to prudent plans for growth and allocation of adequate resources to manage operations risk;
(2) Hiring and retention of qualified senior executive officers and succession planning for such senior executive officers;
(3) Compensation programs of the Enterprise;
(4) Integrity of accounting and financial reporting systems of the Enterprise, including independent audits and systems of internal control;
(5) Process and adequacy of reporting, disclosures, and communications to shareholders, investors, and potential investors;
(6) Extensions of credit to board members and executive officers; and
(7) Responsiveness of executive officers in providing accurate and timely reports to Federal regulators and in addressing the supervisory concerns of Federal regulators in a timely and appropriate manner.
An Enterprise may not directly or indirectly, including through any subsidiary, extend or maintain credit, arrange for the extension of credit, or renew an extension of credit, in the form of a personal loan to or for any board member or executive officer of the Enterprise as provided by section 402 of the SOA, as amended from time to time.
The chief executive officer and the chief financial officer of an Enterprise
An Enterprise may not accept audit services from an external auditing firm if the lead or coordinating audit partner who has primary responsibility for the external audit of the Enterprise, or the external audit partner who has responsibility for reviewing the external audit has performed audit services for the Enterprise in each of the five previous fiscal years.
(a)
(2) The compliance program shall be headed by a compliance officer, however styled, who reports directly to the chief executive officer of the Enterprise. The compliance officer shall report regularly to the board of directors or an appropriate committee of the board of directors on compliance with and the adequacy of current compliance policies and procedures of the Enterprise, and shall recommend any adjustments to such policies and procedures that he or she considers necessary and appropriate.
(b)
(2) The risk management program shall be headed by a risk management officer, however styled, who reports directly to the chief executive officer of the Enterprise. The risk management officer shall report regularly to the board of directors or an appropriate committee of the board of directors on compliance with and the adequacy of current risk management policies and procedures of the Enterprise, and shall recommend any adjustments to such policies and procedures that he or she considers necessary and appropriate.
(c)
(2) An Enterprise that has its common stock registered with the Commission shall maintain such registered status, unless it provides 60 days prior written notice to the Director stating its intent to deregister and its understanding that it will remain subject to the requirements of sections 301, 302, 304, 402, and 406 of the SOA, as amended from time to time, subject to such requirements as provided by § 1710.30 of this part.
In connection with standards of Federal or state law(including the Revised Model Corporation Act) or NYSE rules that are made applicable to an Enterprise by §§ 1710.10, 1710.11, 1710.12, 1710.17, and 1710.19 of this part, the Director, in his or her sole discretion, may modify the standards contained in this part in accordance with 5 U.S.C. 553 and upon written notice to the Enterprise.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is adopting a new airworthiness directive (AD) for the airplanes listed above. For certain airplanes, this AD requires inspecting to determine the airplane's cargo configuration, and reporting findings to the FAA. For airplanes modified in accordance with a certain STC or with a cargo configuration that deviates from the as-delivered configuration, this AD requires revising certain manuals and manual supplements to specify certain cargo limitations. This AD also requires relocating all cargo restraints on the main cargo deck. This AD is prompted by reports that deficiencies related to the cargo loading system may exist on all McDonnell Douglas Model DC-9-15F airplanes modified in accordance with STC SA1993SO. We are issuing this AD to ensure that cargo in the main cabin is adequately restrained and to prevent failure of components of the cargo loading system, failure of the floor structure, or shifting of cargo. Any of these conditions could cause cargo to exceed load distribution limits or cause damage to the fuselage or control cables, which could result in reduced controllability of the airplane.
This AD becomes effective May 11, 2005.
Rany Azzi, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, suite 450, Atlanta, Georgia 30349; telephone (770) 703-6083; fax (770) 703-6097.
The FAA proposed to amend 14 CFR Part 39 with an AD for McDonnell Douglas Model DC-9-15F airplanes modified in accordance with supplemental type certificate (STC) SA1993SO; and Model DC-9-11-DC-9 12, DC-9-13, DC-9-14, DC-9-15, DC-9-15F, DC-9-21, DC-9-31, DC-9-32, DC-9-32 (VC-9C), DC-9-32F, DC-9-33F, DC-9-34, DC-9-34F, DC-9-32F (C-9A, C-9B), DC-9-41, and DC-9-51 airplanes in all-cargo configuration. For certain airplanes, that action, published in the
We provided the public the opportunity to participate in the development of this AD. We have considered the comments that have been submitted on the proposed AD.
One commenter supports the intent of the proposed AD and concurs with the proposed actions.
One commenter, an operator, requests that we revise the applicability of the proposed AD. The commenter states that certain airplanes in its fleet were originally delivered as passenger airplanes but have been modified by various STCs to all-cargo configuration. None of these airplanes were modified in accordance with STC SA1993SO, and none has a main deck cargo door. The commenter notes that the Costs of Compliance section of the proposed AD indicates that a total of 33 airplanes worldwide (including 30 of U.S. registry) would be affected by the proposal. The commenter questions the accuracy of this number because it operates 74 airplanes in cargo configuration (including the airplanes described previously that were originally delivered as passenger airplanes).
We concur with the commenter's request to revise the applicability of this AD. Our intent was to make the requirements of this AD apply to airplanes delivered by the original equipment manufacturer (OEM) with, or modified by a third party to have, a main-deck cargo door that accommodates certain unit loading devices. Accordingly, we have revised the applicability of this AD to specify that this AD applies to Model DC-9-11, DC-9-12, DC-9-13, DC-9-14, DC-9-15, DC-9-15F, DC-9-21, DC-9-31, DC-9-32, DC-9-32 (VC-9C), DC-9-32F, DC-9-33F, DC-9-34, DC-9-34F, DC-9-32F (C-9A, C-9B), DC-9-41, and DC-9-51 airplanes in all-cargo configuration, and equipped with a main-deck cargo door. We have determined that only 8 of the commenter's 74 airplanes would be in this category. This AD also continues to apply to Model DC-9-15F airplanes modified in accordance with supplemental type certificate (STC) SA1993SO.
The same commenter requests that we revise the proposed AD to allow determining the details of the cargo configuration from airplane records without performing the inspection of the main deck cargo compartment. The commenter states that it can determine the cargo configuration of its airplanes by reviewing the airplane records. The commenter further requests that we extend the compliance time from 60 days after the effective date to 6 months or longer after the effective date if we do not agree that a records review is an acceptable method of complying with the proposed requirements. The commenter states that the proposed 60-day compliance time would be unduly burdensome.
We do not agree that a records review is an acceptable method of complying with the requirements of this AD. We proposed this AD because we are aware that some airplanes delivered by the OEM in all-cargo configuration, with a main-deck cargo door, have been modified to a configuration similar to that provided by STC SA1993SO without any documentation in the airplane records. As explained in the proposed AD, the configuration provided by STC SA1993SO and similar configurations have deficiencies including inadequate design of the cargo loading system, inadequate loading procedures, and lack of identification of loading devices and restraining methods. We find that it is necessary to require an inspection of the main deck cargo compartment to determine the exact and accurate details of the airplane's cargo configuration.
We also do not agree to extend the compliance time beyond the proposed 60 days. As we explained in the preamble of the proposed AD, in developing the compliance time for the proposed actions, we considered the degree of urgency associated with addressing the subject unsafe condition, and the time that would be necessary to accomplish the proposed requirements. Based on these factors, we find that a 60-day compliance time for completing the required inspection and report represents an appropriate period of time for affected airplanes to continue to operate without compromising safety. Specifically considering the commenter's fleet, as we stated previously, only 8 of the commenter's 74 cargo airplanes are subject to the requirements of this AD. Therefore, we find that 60 days constitutes an appropriate compliance time in which neither safety nor the commenter's operations will be adversely affected. We have not changed the final rule in this regard.
The same commenter notes that the proposed manual revisions in paragraph (h) of the proposed AD do not take into consideration the different cargo zones and loading configurations for DC-9-30 and DC-9-40 series airplanes. The commenter states that the requirements of paragraphs (h) and (i) of the proposed AD appear to target a specific configuration and series, such as a Model DC-9-15F airplane modified in accordance with STC SA1993SO. The commenter wants the FAA to first accomplish a thorough evaluation of the details of each specific STC cargo configuration before subjecting an operator to a limitation on cargo loading, or a modification to the cargo configuration. The commenter requests that we revise the proposed AD to make paragraphs (h) and (i) apply only to airplanes that have been modified by STC SA1993SO, and to specify that requirements for other airplanes will be issued after an evaluation of the configuration details submitted as
We do not concur. We have determined that the limitations stated in paragraph (h) and the requirements stated in paragraph (i) of this AD can be applied to most airplanes subject to this AD, regardless of model or configuration. Should an operator find that it is unable to comply with the specific requirements of this AD, that operator must request approval of an alternative method of compliance with the reporting requirements of paragraph (f) of this AD, as provided by paragraph (j) of this AD. We will determine whether or not the operator's fleet's cargo configuration exhibits the same unsafe conditions exhibited by airplanes modified in accordance with STC SA1993SO or airplanes in similar configurations. We have not changed the final rule in this regard.
We have carefully reviewed the available data, including the comments that have been submitted, and determined that air safety and the public interest require adopting the AD as proposed.
This AD affects about 3 airplanes of U.S. registry, out of 5 airplanes modified in accordance with STC SA1993SO worldwide. The following table provides the estimated costs for U.S. operators of these airplanes to comply with this AD.
This AD also affects about 27 airplanes of U.S. registry out of 28 airplanes worldwide that are in all-cargo configuration. The following table provides the estimated costs for U.S. operators of these airplanes to comply with this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD 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.
For the reasons discussed above, I certify that this AD:
(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.
We prepared a regulatory evaluation of the estimated costs to comply with this AD. See the
Air transportation, Aircraft, Aviation safety, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective May 11, 2005.
(b) None.
(c) This AD applies to McDonnell Douglas Model DC-9-15F airplanes modified in accordance with supplemental type certificate (STC) SA1993SO; and Model DC-9-11, DC-9-12, DC-9-13, DC-9-14, DC-9-15, DC-9-15F, DC-9-21, DC-9-31, DC-9-32, DC-9-32 (VC-9C), DC-9-32F, DC-9-33F, DC-9-34, DC-9-34F, DC-9-32F (C-9A, C-9B), DC-9-41, and DC-9-51 airplanes in all-cargo configuration, equipped with a main-deck cargo door; certificated in any category.
(d) This AD was prompted by reports that deficiencies related to the cargo loading system may exist on all McDonnell Douglas Model DC-9-15F airplanes modified in accordance with STC SA1993SO. We are
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) For airplanes not modified in accordance with STC SA1993SO:
Within 60 days after the effective date of this AD, perform an inspection of the main deck cargo compartment to determine the details of the airplane's cargo configuration. Within 60 days after the effective date of this AD, submit a report of the details of the airplane's cargo configuration through the FAA Principal Maintenance Inspector (PMI), or the cognizant Flight Standards District Office, as applicable, to the Manager, Atlanta Aircraft Certification Office (ACO), FAA, Small Airplane Directorate. The report must include the airplane serial number, inspection results, and the information specified in paragraphs (f)(1), (f)(2), (f)(3), and (f)(4) of this AD. Under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
(1) Restraint system: Does the airplane have vertical side restraints installed on the main deck floor? How many vertical side restraints are installed per airplane side?
(2) Vertical fore/aft restraints: How many vertical fore/aft restraints are installed on each end of a pallet position?
(3) For airplanes with missing vertical side restraints: Is a bump rail installed?
(4) Unit Loading Devices (ULDs): What type/model ULDs are used for cargo carriage in affected airplanes? Obtain NAS 3610 designation from affixed data plate as required by Technical Standard Order (TSO) C90a, b, c, or designation provided by STC or other approved means. Is there a manual or document that indicates the type/model of ULDs to use? If there is such a manual or document, include the manual/document number and revision level in the report required by paragraph (f) of this AD.
(g) During the inspection required by paragraph (f) of this AD, if the airplane's cargo configuration deviates from the original configuration as delivered by McDonnell Douglas (including, but not limited to, missing vertical side restraints or revised fore/aft restraint configuration), accomplish paragraphs (h) and (i) of this AD.
(h) For airplanes modified in accordance with STC SA1993SO and airplanes specified in paragraph (g) of this AD: Within 90 days after the effective date of this AD, revise the Limitations section of the airplane flight manual (AFM), the AFM supplements, the Limitations section of the airplane weight and balance manual (AWBM), and the AWBM supplements to include the information specified below. This may be accomplished by inserting a copy of this AD into the affected manual or supplement. After accomplishment of these revisions, the airplane must be operated in accordance with these limitations.
“REDUCTION IN CARGO LOADS AS FOLLOWS:
• Zone 1 (most forward): Limited to a maximum of 4,000 pounds,
• Zones 2 through 7: Limited to a maximum of 5,200 pounds each,
• Zone 8 (most aft): Limited to a maximum of 2,000 pounds.
The maximum total payload that can be carried on the main deck is limited to the lesser of:
• The approved cargo barrier weight limit,
• Weight permitted by the approved maximum zero-fuel weight,
• Weight permitted by the approved main deck position weights,
• Weight permitted by the approved main deck running load or distributed load limitations, or
• Approved cumulative zone or fuselage monocoque structural loading limitations (including lower hold cargo).
Limitations:
Use only unit loading devices (ULDs) (containers and pallets) that are structurally compatible with the cargo loading system. One means of establishing compatibility is through compliance with the specifications of NAS 3610 for ULDs approved under Technical Standard Order (TSO) C90a, b, or c; or as provided by the appropriate instructions of a Supplemental Type Certificate or other approved means. Alternative methods of compliance can be obtained as specified in paragraph (j) of this AD.
Ensure proper restraining of the ULDs by engaging all cargo loading system restraints.
The center-of-gravity shift of each ULD must not exceed 10 percent of its base longitudinal or lateral directions.
(i) For airplanes modified in accordance with STC SA1993SO and airplanes specified in paragraph (g) of this AD: Within 90 days after the effective date of this AD, relocate all fore/aft cargo restraints in the main cargo deck to left and right buttock lines 22.0 and 44.5.
(j) The Manager, Atlanta ACO, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(k) None.
Federal Aviation Administration, DOT.
Final rule.
The FAA is revising an existing airworthiness directive (AD), that is applicable to Hartzell Propeller Inc. (formerly TRW Hartzell Propeller) models HC-B3TN-2, HC-B3TN-3, HC-B3TN-5, HC-B4TN-3, HC-B4TN-5, HC-B4MN-5, and HC-B5MP-3 turbopropellers. That AD requires, before further flight, that all new propellers being installed and all serviceable propellers being reinstalled, are attached using part number (P/N) B-3339 bolts and P/N A-2048-2 washers, and that the bolts are properly torqued. That AD also requires a onetime torque-check of P/N A-2047 bolts that are already installed through propellers and replacement of those bolts if necessary, with P/N B-3339 bolts and P/N A-2048-2 washers. This AD requires the same actions, and includes the use of other equivalent FAA-approved serviceable bolts and washers. This AD results from the need to make nonsubstantive wording changes and additions to clarify that terminating action is achieved by attaching propellers with P/N B-3339 bolts and P/N A-2048-2 washers or other equivalent FAA-approved serviceable bolts and washers, to the engine flange, as instructed in the compliance section of this AD. We are issuing this AD to preclude propeller attaching bolt failures or improperly secured propellers, which could lead to separation of the propeller from the airplane.
This AD becomes effective May 11, 2005.
Contact Hartzell Propeller Inc. Technical Publications Department, One Propeller Place, Piqua, OH 45356; telephone (937) 778-4200; fax (937) 778-4391, for the service information referenced in this AD. You may examine the AD docket at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA.
Melissa T. Bradley, Aerospace Engineer, Chicago Aircraft Certification Office, FAA, Small Airplane Directorate, 2300 East Devon Avenue, Des Plaines, IL 60018; telephone: (847) 294-8110; fax: (847) 294-7834.
The FAA proposed to amend 14 CFR part 39 with a proposed airworthiness directive (AD). The proposed AD applies to Hartzell Propeller Inc. (formerly TRW Hartzell Propeller) models HC-B3TN-2, HC-B3TN-3, HC-B3TN-5, HC-B4TN-3, HC-B4TN-5, HC-B4MN-5, and HC-B5MP-3 turbopropellers by revising AD 83-08-01R1, Amendment 39-4633 (48 FR 17576, April 25, 1983), which is applicable to the same turbopropellers. We published the proposed AD in the
We provided the public the opportunity to participate in the development of this AD. We have considered the one comment received.
One commenter requests that we modify the compliance section to state that PMA equivalent parts can also be used to attach the propeller. The commenter states that the proposed AD did not reference all FAA-PMA parts.
We partially agree. For clarification, we have added references to the use of other equivalent FAA-approved serviceable bolts and washers, in lieu of using only P/N B-3339 bolts and P/N A-2048-2 washers.
We have corrected the Petrolated Graphite Military Specification number in the compliance section from MIL-T-5544 to MIL-T-83483.
We have carefully reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.
There are about 17,000 Hartzell Propeller Inc. models HC-B3TN-2, HC-B3TN-3, HC-B3TN-5, HC-B4TN-3, HC-B4TN-5, HC-B4MN-5, and HC-B5MP-3 turbopropellers of the affected design in the worldwide fleet. We estimate that 11,900 turbopropellers installed on airplanes of U.S. registry would be affected by this AD. We also estimate that all of these propellers likely have upgraded to the P/N B-3339 bolts and P/N A-2048-2 washers, or equivalent FAA-approved serviceable bolts and washers, since issuance of the original AD. The average labor rate is $65 per work hour. Bolt and washer replacement will require about 1.5 work hours. Required parts will cost about $260 per propeller. Based on these figures, we estimate the total cost of the AD to replace the bolts and washers for all 11,900 turbopropellers, to be $4,248,300.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This final rule does not have federalism implications, as defined in Executive Order 13132, because it 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. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.
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 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. A final evaluation has been prepared for this action and it 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.
49 U.S.C. 106(g), 40113, 44701.
This AD is applicable to Hartzell Propeller Inc. (formerly TRW Hartzell Propeller) models HC-B3TN-2, HC-B3TN-3, HC-B3TN-5, HC-B4TN-3, HC-B4TN-5, HC-B4MN-5, and HC-B5MP-3 turbopropellers. The HC-B()TN-2, HC-B()TN-3, and HC-B()MP-3 propellers are typically installed on
This AD applies to each propeller identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For propellers that have been modified, altered, or repaired so that the performance of the requirements of this AD are affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (c) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
Compliance with this AD is required as indicated, unless already done.
To preclude propeller attaching bolt failures or improperly secured propellers, which could lead to separation of the propeller from the airplane, do the following:
(a) Install all new propellers and serviceable propellers, as follows, before further flight:
(1) Install the propeller oil seal to the engine flange after ensuring that the engine and propeller flanges are clean.
(2) Carefully install propeller on the engine flange ensuring that complete and true contact is established.
(3) Apply MIL-T-83483 Petrolated Graphite, or Hartzell Lubricant part number (P/N) A-3338, to threads of the eight P/N B-3339 attaching bolts (and remainder of bolt if desired) and to flat surfaces of the eight P/N A-2048-2 washers, or to other equivalent FAA-approved serviceable bolts and washers.
(4) Install the eight P/N B-3339 attaching bolts and eight P/N A-2048-2 washers, or other equivalent FAA-approved serviceable bolts and washers, that were prepared in paragraph (a)(3) of this AD, through the engine flange and into the propeller flange.
(5) Torque all attaching bolts with a torque wrench and an appropriate adapter, to 40 ft.-lbs., and then to 80 ft.-lbs., following sequence “A” (shown below). Final torque all attaching bolts using sequence “B” (shown below) to 100 ft.-lbs. to 105 ft.-lbs. Safety wire all attaching bolts in an FAA-approved manner.
(6) Once the propeller is installed with P/N B-3339 bolts and P/N A-2048-2 washers, or other equivalent FAA-approved serviceable bolts and washers, this AD no longer applies.
(b) Within the next 300 hours time-in-service after the effective date of this AD, do the following on all applicable turbopropellers presently installed with P/N A-2047 attaching bolts:
(1) Check the torque, with a torque wrench and an appropriate adapter, of all eight propeller attaching bolts (with washers installed). Torque should be 100 ft-lbs. to 125 ft.-lbs., with dry threads. (Caution: Do not use any lubricant with the P/N A-2047 bolts. Safety wire all bolts in an FAA-approved manner.)
(2) If the torque of any one of the bolts is found to be less than 100 ft.-lbs., remove all eight bolts and washers and replace with P/N B-3339 bolts and P/N A-2048-2 washers, or other equivalent FAA-approved serviceable bolts and washers, using paragraphs (a)(1) through (a)(5) of this AD.
(3) A P/N A-2047 bolt has the letter “H” stamped inside a triangle on the bolt. A P/N B-3339 bolt has the P/N stamped inside the cupped head.
(4) If the torque of each P/N A-2047 bolt is in compliance, then at next propeller disassembly, remove all eight bolts and washers and replace with P/N B-3339 bolts and P/N A-2048-2 washers, or other equivalent FAA-approved serviceable bolts and washers. Use paragraphs (a)(1) through (a)(5) of this AD to do the replacements.
(5) Hartzell Service Instructions No. 140A, Revision 9, dated March 30, 2005, is the latest service information that pertains to the subject of this AD.
(c) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Chicago Aircraft Certification Office. Operators must submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Chicago Aircraft Certification Office.
Information concerning the existence of approved alternative methods of compliance with this airworthiness directive, if any, may be obtained from the Chicago Aircraft Certification Office.
(d) Special flight permits may be issued in accordance with §§ 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be done.
(e) This amendment becomes effective on May 11, 2005.
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective April 6, 2005. The compliance date for each SIAP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of April 6, 2005.
Availability of matters incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The Flight Inspection Area Office which originated the SIAP; or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Donald P. Pate, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.
This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation Regulations (FAR). The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, and 8260-5. Materials incorporated by reference are available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to part 97 is effective upon publication of each separate SIAP as contained in the transmittal. Some SIAP amendments may have been previously issued by the FAA in a National Flight Data Center (NFDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP amendments may require making them effective in less than 30 days. For the remaining SIAPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect a change of sponsor for a new animal drug application (NADA) from Akzo Nobel Surface Chemistry AB (Azko Nobel) to Virbac AH, Inc.
This rule is effective April 6, 2005.
David R. Newkirk, Center for Veterinary Medicine (HFV-100), Food and Drug Administration,7500 Standish Pl., Rockville, MD 20855, 301-827-6967, e-mail:
Akzo Nobel, Box 851, S-44485 Stenungsund, Sweden, has informed FDA that it has transferred ownership of, and all rights and interest in, NADA 10-886 for Purina Liquid Wormer to Virbac AH, Inc., 3200 Meacham Blvd., Ft. Worth, TX 76137.
Following this change of sponsorship, Akzo Nobel is no longer the sponsor of an approved application. Accordingly, 21 CFR 510.600(c) is being amended to remove the entries for Akzo Nobel.
Purina Liquid Wormer (NADA 10-886) is labeled for use in chickens, turkeys, and swine. The drug was the subject of a National Academy of Sciences/National Research Council evaluation of effectiveness under FDA's drug efficacy study implementation (DESI) program (DESI 10-005V). The findings of the evaluation were published in the
In addition, § 520.1806 has been found to inaccurately list Akzo Nobel as the sponsor of an oral piperazine product approved for use in dogs. This error occurred during the codification of a previous change of sponsor for NADA 10-886 (59 FR 28763, June 3, 1994). Accordingly, the agency is amending the regulations in § 520.1806 to remove Akzo Nobel's drug labeler code and to reflect the current format.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Animal drugs.
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
21 U.S.C. 360b.
(a)
(b)
(c)
(d)
(2)
(3)
Copyright Office, Library of Congress.
Final rule.
The Copyright Office of the Library of Congress is publishing the royalty rates for analog television broadcast stations retransmitted by satellite carriers under the section 119 statutory license.
January 1, 2005.
David O. Carson, General Counsel, or Tanya Sandros, Associate General Counsel, Copyright Arbitration Royalty Panel (CARP), P.O. Box 70977, Southwest Station, Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 252-3423.
On December 8, 2004, the President signed the Satellite Home Viewer Extension and Reauthorization Act (“SHVERA”), a part of the Consolidated Appropriations Act of 2005. Pub.L. 108-447, 118 Stat. 3394. SHVERA extends for an additional five years the statutory license for satellite carriers retransmitting over-the-air television broadcast stations to their subscribers, 17 U.S.C. 119, as well as making a number of amendments to the license. One of the amendments to section 119 sets forth a process for adjusting the royalty fees paid by satellite carriers for retransmitting analog television network and superstations. 17 U.S.C. 119(c)(1). The law directs the Librarian of Congress to publish notice in the
The Office has received one agreement, submitted jointly by the satellite carriers DirecTV, Inc. and EchoStar Satellite L.L.C., the copyright owners of motion pictures and syndicated television series represented by the Motion Picture Association of America, and the copyright owners of sports programming represented by the Office of the Commissioner of Baseball. Section 119(c)(1)(D)(ii)(II) requires the Library to “provide public notice of the royalty fees from the voluntary agreement and afford parties an opportunity to state that they object to those fees.” 17 U.S.C. 119(c)(1)(D)(ii)(II). The Library published a Notice of Proposed Rulemaking on January 26, 2005, to fulfill this requirement. 70 FR 3656 (January 26, 2005). No objections were received. Consequently, the Library is adopting the voluntary agreement as final.
Copyright, Satellite, Television.
17 U.S.C. 119, 702, 802.
(d) Commencing January 1, 2005, the royalty rate for secondary transmission of broadcast stations by satellite carriers shall be as follows:
(1) For private home viewing-
(i) 20 cents per subscriber per month for distant superstations.
(ii) 17 cents per subscriber per month for distant network stations.
(2) For viewing in commercial establishments, 40 cents per subscriber per month for distant superstations.
(e) Commencing January 1, 2006, the royalty rate for secondary transmission of broadcast stations by satellite carriers shall be as follows:
(1) For private home viewing-
(i) 21.5 cents per subscriber per month for distant superstations.
(ii) 20 cents per subscriber per month for distant network stations.
(2) For viewing in commercial establishments, 43 cents per subscriber per month for distant superstations.
(f) Commencing January 1, 2007, the royalty rate for secondary transmission of broadcast stations by satellite carriers shall be as follows:
(1) For private home viewing-
(i) 23 cents per subscriber per month for distant superstations.
(ii) 23 cents per subscriber per month for distant network stations.
(2) For viewing in commercial establishments, 46 cents per subscriber per month for distant superstations.
(g) Commencing January 1, 2008, the royalty rate for secondary transmission of broadcast stations by satellite carriers shall be as follows:
(1) For private home viewing-
(i) The 2007 rate per subscriber per month for distant superstations adjusted for the amount of inflation as measured by the change in the Consumer Price Index for all Urban Consumers from January 2007 to January 2008.
(ii) The 2007 rate per subscriber per month for distant network stations adjusted for the amount of inflation as measured by the change in the Consumer Price Index for all Urban Consumers from January 2007 to January 2008.
(2) For viewing in commercial establishments, the 2007 rate per subscriber per month for viewing distant superstations in commercial establishments adjusted for the amount
(h) Commencing January 1, 2009, the royalty rate for secondary transmission of broadcast stations by satellite carriers shall be as follows:
(1) For private home viewing-
(i) The 2008 rate per subscriber per month for distant superstations adjusted for the amount of inflation as measured by the change in the Consumer Price Index for all Urban Consumers from January 2008 to January 2009.
(ii) The 2008 rate per subscriber per month for distant network stations adjusted for the amount of inflation as measured by the change in the Consumer Price Index for all Urban Consumers from January 2008 to January 2009.
(2) For viewing in commercial establishments, the 2008 rate per subscriber per month for viewing distant superstations in commercial establishments adjusted for the amount of inflation as measured by the change in the Consumer Price Index for all Urban Consumers from January 2008 to January 2009.
Approved by:
Environmental Protection Agency (EPA).
Final approval.
The EPA is granting final approval to a revision to the Texas Low Emission Diesel (TXLED) fuel program State Implementation Plan (SIP) that applies in 110 counties in the eastern and central parts of Texas. Under section 553(d)(1) of the Administrative Procedure Act, EPA is making this action effective upon publication because it relieves a restriction.
This rule is effective April 6, 2005.
EPA has established a docket for this action under Regional Material in EDocket (RME) Docket ID No. R06-OAR-2005-TX-0020. All documents in the docket are listed in the Regional Material in EDocket (RME) index at
The State submittal is also available for public inspection at the State Air Agency listed below during official business hours by appointment: Texas Commission on Environmental Quailty, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753.
Sandra Rennie, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7367; fax number 214-665-7263; e-mail address
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
Today we are approving the compliance date changes found in the March 9, 2005, TXLED SIP revision submitted by the State of Texas. We are approving the phased schedule for compliance which extends the compliance date from April 1, 2005 to October 1, 2005 for producers and importers, from April 1, 2005 to November 15, 2005 for bulk plant distribution facilities, and from April 1, 2005 to January 1, 2006 for retail fuel dispensing outlets, wholesale bulk purshaser/consumer facilities, and all other affected persons.
We approved the original TXLED rule on November 14, 2001, (66 FR 57196) as part of the Texas SIP and also found that it was relied upon for demonstrating attainment in the Houston-Galveston Attainment Demonstration SIP. On December 15, 2004, the Texas Commission on Environmental Quality (TCEQ) Commissioners proposed to revise the TXLED rule. Among other revisions, the commission proposed to extend the compliance date from April 1, 2005 to October 1, 2005. The commission proposed this extension because of concern about product availability by the current compliance date. On February 16, 2005 the Executive Director of the TCEQ submitted a letter to EPA requesting parallel processing of the compliance date portion of the SIP revision for TXLED.
On February 24, 2005, we proposed approval, through parallel processing, of a revision to the SIP that would change the compliance date for TXLED fuel from April 1, 2005, to October 1, 2005, consistent with a proposed revision to the state rule that the state had noticed for public hearing. In addition, we proposed approval and requested comments on a refinement to the State's proposed revision that the state had subsequently indicated that it was considering. The refinement would extend the compliance date from April 1, 2005 to October 1, 2005 for producers and importers, from April 1, 2005 to November 15, 2005 for bulk plant distribution facilities, and from April 1, 2005 to January 1, 2006 for retail fuel dispensing outlets, wholesale bulk purchaser/consumer facilities, and all other affected persons.
The commission adopted revisions to the TXLED SIP on March 9, 2005. The revision was submitted to EPA on March 23, 2005. The submitted revision is consistent with our proposal. It
We received comments in support of this rulemaking from ExxonMobil Refining and Supply, and Shell Oil Products, US. No adverse comments were received.
We are granting final approval to the compliance date change in the TXLED SIP revision. The compliance dates approved are October 1, 2005 for producers and importers, November 15, 2005 for bulk plant distribution facilities, and January 1, 2006 for retail fuel dispensing outlets, wholesale bulk purchaser/consumer facilities, and all other affected persons.
Section 553(d) of the Administrative Procedure Act generally provides that rules may not take effect earlier than 30 days after they are published in the
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 and because this action will not have a significant, adverse effect on the supply, distribution, or use of energy, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action 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 under the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note), 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. section 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 6, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Carbon Monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7402
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a temporary exemption from the requirement of a tolerance for residues of the
This regulation is effective April 6, 2005. Objections and requests for hearings must be received on or before June 6, 2005.
To submit a written objection or hearing request follow the detailed instructions as provided in Unit VIII. of the
Mike Mendelsohn, Biopesticides and Pollution Prevention Division (7511C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8715; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111)
• Animal production (NAICS code 112)
• Food manufacturing (NAICS code 311)
• Pesticide manufacturing (NAICS code 32532)
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
In addition to using EDOCKET (
In the
Section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, section 408(b)(2)(D) of the FFDCA requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.
Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Data have been submitted demonstrating the lack of mammalian toxicity at high levels of exposure to the pure mCry3A protein. These data demonstrate the safety of the products at levels well above maximum possible exposure levels that are reasonably anticipated in the crops. This is similar to the Agency position regarding toxicity and the requirement of residue data for the microbial
An acute oral toxicity study was submitted for the mCry3A protein. The acute oral toxicity data submitted support the prediction that the mCry3A protein would be non-toxic to humans. Male and female mice (5 of each) were dosed with 2,377 milligrams/kilograms bodyweight (mg/kg bwt) of mCry3A protein. With the exception of one female in the test group that was euthanized on day 2 (due to adverse clinical signs consistent with a dosing injury), all other mice survived the study, gained weight, had no test material-related clinical signs, and had no test material-related findings at necropsy.
When proteins are toxic, they are known to act via acute mechanisms and at very low dose levels (Sjoblad, Roy D., et al. “Toxicological Considerations for Protein Components of Biological Pesticide Products,” Regulatory Toxicology and Pharmacology 15, 3-9 (1992)). Therefore, since no effects were shown to be caused by the plant-incorporated protectants, even at relatively high dose levels, the mCry3A protein is not considered toxic. Further, amino acid sequence comparisons showed no similarity between the mCry3A protein to known toxic proteins available in public protein data bases.
Since mCry3A is a protein, allergenic sensitivities were considered. Current scientific knowledge suggests that common food allergens tend to be resistant to degradation by heat, acid, and proteases; may be glycosylated; and present at high concentrations in the food.
Data have been submitted that demonstrate that the mCry3A protein is rapidly degraded by gastric fluid
In examining aggregate exposure, section 408 of the FFDCA directs EPA to consider available information concerning exposures from the pesticide
The Agency has considered available information on the aggregate exposure levels of consumers (and major identifiable subgroups of consumers) to the pesticide chemical residue and to other related substances. These considerations include dietary exposure under the tolerance exemption and all other tolerances or exemptions in effect for the plant-incorporated protectant chemical residue, and exposure from non-occupational sources. Exposure via the skin or inhalation is not likely since the plant-incorporated protectant is contained within plant cells, which essentially eliminates these exposure routes or reduces these exposure routes to negligible. Exposure via residential or lawn use to infants and children is also not expected because the use sites for the mCry3A protein are all agricultural for control of insects. Oral exposure, at very low levels, may occur from ingestion of processed corn products and, potentially, drinking water. However, oral toxicity testing done at a dose in excess of 2 gm/kg showed no adverse effects. Furthermore, the expression of the modified Cry3A protein in corn kernals has been shown to be in the parts per million range, which makes the expected dietary exposure several orders of magnitude lower than the amounts of mCry3A protein shown to have no toxicity. Therefore, even if negligible aggregate exposure should occur, the Agency concludes that such exposure would prevent no harm due to the lack of mammalian toxicity and the rapid digestibility demonstrated for the mCry3A protein.
Pursuant to FFDCA section 408(b)(2)(D)(v), EPA has considered available information on the cumulative effects of such residues and other substances that have a common mechanism of toxicity. These considerations included the cumulative effects on infants and children of such residues and other substances with a common mechanism of toxicity. Because there is no indication of mammalian toxicity, resulting from the plant-incorporated protectant, we conclude that there are no cumulative effects for the mCry3A protein.
The data submitted and cited regarding potential health effects for the mCry3A protein include the characterization of the expressed mCry3A protein in corn, as well as the acute oral toxicity, and
Adequate information was submitted to show that the mCry3A protein test material derived from microbial cultures was biochemically and, functionally similar to the protein produced by the plant-incorporated protectant ingredients in corn. Production of microbially produced protein was chosen in order to obtain sufficient material for testing.
The acute oral toxicity data submitted supports the prediction that the mCry3A protein would be non-toxic to humans. As mentioned above, when proteins are toxic, they are known to act via acute mechanisms and at very low dose levels (Sjoblad, Roy D., et al. “Toxicological Considerations for Protein Components of Biological Pesticide Products,” Regulatory Toxicology and Pharmacology 15, 3-9 (1992)). Since no effects were shown to be caused by mCry3A protein, even at relatively high dose levels (2,377 mg mCry3A/kg bwt), the mCry3A protein is not considered toxic. This is similar to the Agency position regarding toxicity and the requirement of residue data for the microbial
MCry3A protein residue chemistry data were not required for a human health effects assessment of the subject plant-incorporated protectant ingredients because of the lack of mammalian toxicity. However, data submitted demonstrated low levels of mCry3A in corn tissues with less than 2 micrograms mCry3A protein/gram dry weight in kernals and less than 30 micrograms mCry3A protein/gram dry weight of whole corn plant.
Since modified Cry3A is a protein, its potential allergenicity is also considered as part of the toxicity assessment. Data considered as part of the allergenicity assessment include that the modified Cry3A protein came from
Neither available information concerning the dietary consumption patterns of consumers (and major identifiable subgroups of consumers including infants and children); nor safety factors that are generally recognized as appropriate for the use of animal experimentation data were evaluated. The lack of mammalian toxicity at high levels of exposure to the mCry3A protein, as well as the minimal potential to be a food allergen demonstrate the safety of the product at levels well above possible maximum exposure levels anticipated in the crop.
The genetic material necessary for the production of the plant-incorporated protectant active ingredients are the nucleic acids (DNA, RNA) which comprise genetic material encoding these proteins and their regulatory regions. The genetic material (DNA, RNA), necessary for the production of mCry3A protein has been exempted under the blanket exemption for all nucleic acids (40 CFR 174.475).
FFDCA section 408(b)(2)(C) provides that EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity.
In addition, FFDCA section 408(b)(2)(C) also provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA determines that a different margin of safety will be safe for infants and children.
In this instance, based on all the available information, the Agency concludes that there is a finding of no toxicity for the mCry3A protein and the genetic material necessary for their
There is a reasonable certainty that no harm will result from aggregate exposure to the U.S. population, including infants and children, to the mCry3A protein and the genetic material necessary for its production. This includes all anticipated dietary exposures and all other exposures for which there is reliable information.
The Agency has arrived at this conclusion because, as discussed above, no toxicity to mammals has been observed, nor any indication of allergenicity potential for the plant-incorporated protectant.
The pesticidal active ingredient is a protein, derived from sources that are not known to exert an influence on the endocrine system. Therefore, the Agency is not requiring information on the endocrine effects of the plant-incorporated protectant at this time.
A method for extraction and ELISA analysis of mCry3A protein in corn has been submitted and found acceptable by the Agency.
No Codex maximum residue levels exist for the plant-incorporated protectant
Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) of the FFDCA provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old sections 408 and 409 of the FFDCA. However, the period for filing objections is now 60 days, rather than 30 days.
You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2005-0073 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before [
1.
Mail your written request to: Office of the Hearing Clerk (1900L), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. You may also deliver your request to the Office of the Hearing Clerk in Suite 350, 1099 14th St., NW., Washington, DC 20005. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 564-6255.
2.
A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).
This final rule establishes a temporary exemption from the requirement of a tolerance requirement under section 408(d) of the FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
7 U.S.C. 136-136y; 21 U.S.C. 346a and 371.
Federal Communications Commission.
Final rule; petitions for reconsideration.
This document lists Petitions for Reconsideration filed on or shortly before December 22, 2004, in the 800 MHz Public Safety Interference Proceeding, and establishes deadlines for the filing of Oppositions to the Petitions for Reconsideration and Replies to the Oppositions.
Submit Oppositions to the Petitions for Reconsideration listed below April 21, 2005. Submit Replies to Oppositions to the Petitions for Reconsideration May 2, 2005.
All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications
Ramona Melson, Esq., Public Safety and Critical Infrastructure Division, Wireless Telecommunications Bureau at (202) 418-0680 or via the Internet at
In the
On December 22, 2004, the Commission adopted a
Specifically, the Division deferred the date for filing oppositions to the petitions for reconsideration of the
The following parties have filed Petitions for Reconsideration of the
The Commission will not send a copy of this document pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), because no adopted rules are attached. This document concerns the applicable dates for filing replies and oppositions to the petitions for reconsideration in the 800 MHz proceeding.
Federal Communications Commission.
Final rule.
This document extends for one year the transition periods for unlicensed National Information Infrastructure (U-NII) equipment operating in the 5.250-5.350 GHz band. This action will allow devices to continue to obtain equipment authorizations and to be marketed under the rules in effect prior to the adoption of the
Effective February 23, 2005.
Priya Shrinivasan, 418-7005 or Karen Rackley, 418-2431, Policy and Rules Division, Office of Engineering & Technology.
This is a summary of the Commission's
1. In the
2.
3. In the
4.
5. The Congressional Review Act (CRA), was addressed in a Report and Order released by the Commission, November 18, 2003, in “
6. Pursuant to sections 4(i), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 54(i), 303(f), and 303(r), and Section 553(d) of the Administrative Procedure Act, 5 U.S.C. 553(d), the
7. Section 15.37(l), 47 CFR
Communications equipment, Radio, Reporting and recordkeeping requirements.
47 U.S.C. 154, 302a, 303, 304, 307, 336 and 544A.
(l) U-NII equipment operating in the 5.25-5.35 GHz band for which applications for certification are filed on
Federal Communications Commission.
Final rule; petition for reconsideration.
In this document, the Federal Communications Commission (Commission) grants petitions filed by Sprint Corporation (Sprint) and WorldCom, Inc. (MCI) seeking reconsideration of the Commission's March 14, 2003, Order on Reconsideration (
The petitions were granted as of March 9, 2005.
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Thomas Chandler, Consumer & Governmental Affairs Bureau at (202) 418-1475 (voice), (202) 418-0597 (TTY), or e-mail:
This is a summary of the Commission's
On April 14, 2003, Sprint filed a petition for “limited reconsideration” of the
Sprint makes numerous arguments in support of its petition. It argues that there is no legal bar to providing payment for services rendered before the grant of the HCO and pay-per-call waivers, distinguishing the cases cited by the Commission for the proposition that the retroactive application of waivers is not favored. Sprint asserts, for example, that the waivers it seeks are “merely to correct mistakes made by the Commission in the [
Sprint also argues that “rigid adherence to all TRS requirements is inconsistent with other TRS precedent.” Sprint asserts that the Commission has found in other contexts that TRS providers are eligible for compensation even if they do not meet every requirement of the Commission's rules, stating that “absolute compliance with each component of the rules may not always be necessary to fulfill the purposes of the statute and the policy objectives of the implementing rules, and that not every minor deviation would justify withholding funding from a legitimate TRS provider.” In this regard, Sprint emphasizes that the Commission has recognized that HCO and pay-per-call services are infrequently used, and that therefore IP Relay providers, like Sprint, have substantially complied with the TRS mandatory minimum standards.
Sprint also contends that the Commission “cannot lawfully single out Sprint for non-payment” of compensation, asserting that the Commission's conclusion in the
On May 16, 2003, MCI filed a petition styled “Petition for Clarification and/or Reconsideration.”
On May 22, 2003, Sprint's and MCI's petitions were placed on public notice.
The Joint Commenters support Sprint's petition and request that the Commission compensate all providers of IP Relay service even if they did not provide HCO and 900 call services. They assert that “the unique circumstances of this case justify reimbursing Sprint and other similarly-situated carriers for the IP Relay services they rendered to deaf and hard-of-hearing individuals.” They further assert that it would be unjust to penalize Sprint for not providing services that the Commission has found to be “technically infeasible to provide.” Finally, they assert that in light of “these unique circumstances, where deaf and hard-of-hearing individuals benefited from a wider range of service alternatives and the FCC ultimately determined that it was technically infeasible to provide the minimum requirements at issues, the best way for the Commission to accomplish th[e] objective [of encouraging new services] and promote the future deployment of innovative TRS services is to grant Sprint's Petition.”
In its reply, Sprint asserts that Hamilton's assertion that it would be harmed by allowing Sprint and others retroactive compensation is inaccurate because by not providing IP Relay service, Hamilton incurred no costs. Sprint also states that competitive harm would be more likely to occur if the Commission refuses to provide retroactive compensation, because potential providers of new TRS services will be deterred from beginning service until all uncertainties about standards are completely resolved. In its reply, MCI asserts that, in fact, it complied with the HCO and pay-per-call standards as articulated in the
We conclude that, in the unique circumstances of this proceeding, Sprint is entitled to compensation for its provision of IP Relay prior to the March 2003
First, based on our review of this proceeding as a whole, we find that we cannot conclude that Sprint was in fact offering IP Relay service in violation of our rules. We recognize that the initial
Upon our review of the record in these proceeding as set forth above, we cannot conclude that Sprint's interpretation of the HCO and 900 call requirements is the only reasonable interpretation of those rules, and therefore we cannot conclude that Sprint was in fact offering IP Relay service in violation of the rules. Sprint's interpretation of those requirements as described in the
Second, as a matter of equity, the fact that all parties agree that it was not technologically feasible to provide one-line HCO and 900 service as understood by Sprint, and that for this reason the Commission ultimately waived those requirements in the
Third, upon our complete review of the record, we believe our conclusion best comports with the public interest. Sprint provided the IP Relay service for which it now seeks compensation, and had it not handled those calls, the calls would have been handled either by other IP Relay providers or as traditional TRS calls. Further, Sprint began offering IP Relay service when it was a new service, involving, for relay, new technology that providers and consumers desired to have available as soon as possible. Consumers place great emphasis on having access to the latest TRS innovations as soon as they are technologically available in the market. For example, in response to the
Further, although we are not unmindful that Hamilton has likely suffered some disadvantage from its decision to delay offering the service until the HCO and pay-per-call issues were resolved, Sprint and other providers that offered IP Relay during this period did incur real costs in doing so. For example, money was paid out for the salaries of CAs and managers, for the equipment necessary to provide the service, and for other ancillary costs related to providing service. Further, any harm Hamilton might have suffered from not offering the service is not dependent on whether Sprint (and the other providers) may be compensated for the service they offered, but from the fact that they offered it at all and therefore were first to the market.
Finally, as the parties have noted, we recognize that in the context of an enforcement action against a TRS provider and in determining whether the provider complied with the standards of § 64.604 and therefore was entitled to compensation from the fund, we stated that “absolute compliance with each component of the rules may not always be necessary to fulfill the purposes of the statute * * *, and that not every minor deviation would justify withholding funding from a legitimate TRS provider.” We also stated that “a TRS provider is eligible for TRS Fund reimbursement if it has substantially complied with § 64.604.” We need not address, however, whether Sprint is entitled to compensation under that standard because we have concluded that Sprint did not offer the service in violation of the rules given their initial ambiguity. At the same time, we do note that the number of HCO and 900 calls handled by the providers at that time
Although we conclude that, in view of the unusual circumstances of this matter, payment to Sprint is warranted for the IP Relay service it provided, we caution all TRS providers, current and potential, that we expect them to offer service in compliance with all non-waived mandatory minimum standards. It bears repeating that TRS is an accommodation for persons with disabilities. As such, TRS providers are required to offer service that is functionally equivalent to voice telephone service, as defined by all non-waived mandatory minimum standards applicable to the particular form of TRS. It is therefore the consumers of TRS who suffer when the service is not provided consistent with our rules. We will remain vigilant in ensuring that providers do not offer service that short-changes the intended beneficiaries of these services. To that end, the leverage that we have is to deny compensation from the Interstate TRS Fund for the provision of service that is not in compliance with our rules. This
For the reasons set forth above, we grant Sprint's
The Regulatory Flexibility Act of 1980, as amended (RFA), (the RFA,
The Commission concludes in this item that public interest is best served by compensating Sprint for its provision of IP Relay services prior to the March 2003
This item affects IP Relay providers, but imposes no regulatory burden upon them. Currently, only four entities are providing IP Relay: AT&T, Hamilton, MCI, and Sprint. Moreover, this item imposes no significant economic impact on small entities, but in fact confers a benefit rather than an adverse impact on small entities by compensating an entity that provided a nascent service in good faith. Even if the compensation to Sprint could be hypothetically construed as a significant economic impact, the fact that only four entities provide the service, and that only one company is receiving compensation, means that no “substantial number of small entities” is affected.
Therefore, certification is in order since both prongs of the legal test—
The Commission will send a copy of this
Pursuant to the authority contained in sections 1, 2, and 225 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, and 225, that this
The
The
The Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Federal Communications Commission (Commission) announces that the Office of Management and Budget (OMB) approved for three years the information collection requirements contained in the
47 CFR 64.604(a)(4) published at 69 FR 53346, September 1, 2004 is effective April 6, 2005.
Dana Jackson, Consumer & Governmental Affairs Bureau, Disability Rights Office at (202) 418-2247 (voice), (202) 418-7898 (TTY); e-mail:
This is a summary of the Commission's document DA 05-728, released March 29, 2005, announcing OMB approval for three years the information collection requirements contained in the
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to
As required by the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3507), the FCC is notifying the public that it received approval from OMB on March 11, 2005, for the collection(s) of information contained in the Commission's annual reporting requirements in 47 CFR 64.604(a)(4). The OMB Control Number is 3060-1043. The annual reporting burden for the collection(s) of information, including the time for gathering and maintaining the collection of information, is estimated to be: 7 respondents, and average of 10 hours per response per annum, for a total hour burden of 70 hours, and no annual cost. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB Control Number. The OMB Control Number is 3060-1043.
The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, 44 U.S.C. 3507.
Telecommunications, Individuals with disabilities, Reporting and recordkeeping requirements.
Federal Communications Commission.
Final rule, petition for reconsideration.
This document grants the Petition for Reconsideration filed by Dana J. Puopolo directed to the
Effective May 2, 2005.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554.
Rolanda F. Smith, Media Bureau, (202) 418-2180.
This is a summary of the Commission's
This document also grants the Petition for Reconsideration filed by KAGM, LLC, licensee of Station KAGM(FM), Channel 272A, Strasburg,Colorado, On-Air Family, LLC, licensee of Station KBRU-FM, Channel 268C,Fort Morgan, Colorado, Regent Broadcasting of Ft. Collins, Inc., licensee of Station KTRR(FM), Channel 273C2, Loveland, Colorado, NRC Broadcasting,Inc., licensee of Station KSMT(FM), Channel 272A, Breckenridge, Colorado and Station KTUN(FM), Channel 269C1, Eagle, Colorado, and AGM-Nevada,LLC, licensee of Station KARS-FM, Channel 275C1, Laramie, Wyoming by reallotting Channel 272A from Strasburg to Greenwood Village, Colorado, as its first local service, and modifying the license of Station KAGM(FM). Channel 272A can be allotted to Greenwood Village consistent with the Commission's minimum distance separation requirements provided there is a site restriction of 12.5 kilometers (7.7 miles) east of the community. The reference coordinates for Channel 272A at Greenwood Village are 39-37-32 North Latitude and 104-47-47 West Longitude. To ensure continued operational local service at Strasburg, we reallot Channel 268C from Fort Morgan to Strasburg, Colorado, as its first local operational service, and modify the license of Station KBRU-FM to reflect this change. Fort Morgan will continue to receive local service from full-time AM Station KFTM. Channel 268C can be allotted to Strasburg consistent with the Commission's minimum distance separation requirements provided there is a site restriction of 41.9 kilometers (26 miles) east of the community. The reference coordinates for Channel 268C at Strasburg are 39-51-39 North Latitude and 103-51-44 West Longitude. To accommodate the Greenwood Village reallotment, we modify the transmitter sites for Stations KSMT(FM), Channel 272A, Breckenridge, Colorado and Station KTRR(FM), Channel 237C3, Loveland, Colorado. The transmitter site for Station KSMT(FM), Channel 272A, Breckenridge, Colorado can be modified consistent with the Commission's minimum distance separation requirements provided there is a site restriction of 8.4 kilometers (5.2 miles) southwest of the community. The modified license coordinates for Channel 272A at Breckenridge are 39-25-52 North Latitude and 106-06-17 West Longitude. The transmitter site for Station KTRR(FM), Channel 273C2, Loveland, Colorado also can be modified consistent with the Commission's minimum distance separation requirements provided there is a site restriction of 26.1 kilometers (16.2 miles) northeast of the community. The modified license coordinates for Channel 273C2 at Loveland are 40-34-33 North Latitude and 104-52-22 West Longitude. To facilitate Station KSMT(FM) relocation, we modify the license site for Station KTUN(FM), Eagle, Colorado because the requested Channel 269C1 substitution was granted by minor change application. The transmitter site for Station KTUN(FM), Channel 269C1, Eagle, Colorado can be modified consistent with the Commission's minimum distance separation requirements provided there is a site restriction of 12.8 kilometers (7.9 miles) northwest of the community. The modified license coordinates for Channel 269C1 at Eagle are 39-45-15 North Latitude and 106-54-13 West Longitude. Moreover, because the requested Channel 275C1 downgrade at Laramie was also granted by minor change application, we modify the licensed site for Station KARS-FM, Laramie, Wyoming to accommodate Station KTRR-FM relocation. The transmitter site for Station KARS-FM, Channel 275C1, Laramie, Wyoming also can be modified consistent with the Commission's minimum distance separation requirements provided there is a site restriction of 47 kilometers (29.2 miles) south of the community. The modified license coordinates for Channel 275C1 at Laramie are 40-53-55 North Latitude and 105-42-31 West.
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334 and 336.
Surface Transportation Board, DOT.
Final rules.
The Board adopts its 2005 User Fee Update and revises its fee schedule to recover the costs associated with the January 2005 Government salary increases and to reflect changes in overhead costs to the Board.
David T. Groves, (202) 565-1551, or Anne Quinlan, (202) 565-1727. [TDD for the hearing impaired: 1-800-877-8339.]
The Board's regulations at 49 CFR 1002.3 require that the Board's user fee schedule be updated annually. The regulation at 49 CFR 1002.3(a) provides that the entire fee schedule or selected fees can be modified more than once a year, if necessary. Fees are revised based on the cost study formula set forth at 49 CFR 1002.3(d).
Because Board employees received a salary increase of 3.71% in January 2005, the Board is updating its user fees to recover the increased personnel costs.
The fee increases adopted here result from the mechanical application of the update formula in 49 CFR 1002.3(d), which was adopted through notice and comment procedures in
The Board concludes that the fee changes adopted here will not have a significant economic impact on a substantial number of small entities because the Board's regulations provide for waiver of filing fees for those entities that can make the required showing of financial hardship.
Additional information is contained in the Board's decision. To obtain a free copy of the full decision, visit the Board's Web site at
Administrative practice and procedure, Common carriers, Freedom of information, User fees.
By the Board, Chairman Nober, Vice Chairman Buttrey and Commissioner Mulvey.
5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701 and 49 U.S.C. 721(a).
(b) Service involved in examination of tariffs or schedules for preparation of certified copies of tariffs or schedules or extracts therefrom at the rate of $34.00 per hour.
(c) Service involved in checking records to be certified to determine authenticity, including clerical work, etc., incidental thereto, at the rate of $24.00 per hour.
(f) * * *
(1) A fee of $60.00 per hour for professional staff time will be charged when it is required to fulfill a request for ADP data.
(g) * * *
(6) * * *
(a) * * *
(f)
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Airbus Model A300-600 airplanes. This proposed AD would require an inspection for evidence of chafing between the hydraulic flexible hose and the ram air turbine (RAT) hub, and related investigative and corrective actions if necessary. This proposed AD is prompted by reports of holes in the RAT hub cover. We are proposing this AD to prevent a hole in the RAT hub cover. A hole in the RAT hub cover could allow water to enter the RAT governing mechanism, freeze during flight, and jam the governing mechanism. In addition, the metal particles that result from chafing between the hydraulic flexible hose and the RAT could mix with the lubricant grease and degrade the governing mechanism. In an emergency, a jammed or degraded RAT could result in its failure to deploy, loss of hydraulic pressure or electrical power to the airplane, and consequent reduced controllability of the airplane.
We must receive comments on this proposed AD by May 6, 2005.
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.
• By fax: (202) 493-2251.
• 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 Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France.
You can examine the contents of this AD docket on the Internet at
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.
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
You can examine the AD docket on the Internet at
The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified us that an unsafe condition may exist on certain Airbus Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model C4-605R Variant F airplanes (collectively called A300-600 airplanes). The DGAC advises that, during a maintenance inspection, an operator discovered a hole in the ram air turbine (RAT) hub. Investigation revealed that the hole resulted from chafing between the hydraulic flexible hose and RAT hub cover. Further investigation revealed that a similar finding had been reported during airplane production. The subsequent investigation revealed that, when the flexible hoses for the hydraulic system were installed, the binding had not been performed correctly. Due to the incorrect installation of the binding, a hose chafed the RAT hub and eventually wore a hole into the hub cover. A hole in the RAT hub cover could allow water to enter the RAT governing mechanism, freeze during flight, and jam the governing mechanism. In addition, the metal particles that result from chafing
Airbus has issued Service Bulletin A300-29-6054, Revision 01, including Appendix 01, dated November 4, 2004. The service bulletin describes procedures for doing a one-time detailed visual inspection for evidence of chafing between the hydraulic flexible hose and the RAT hub, and related investigative and corrective actions. The related investigative and corrective actions include:
• If any damage is found on the RAT hub, referencing the Airbus A300-600 Component Maintenance Manual (CMM) to determine if the damage is within the limits specified in the CMM.
• Replacing the RAT if any damage exceeds the limits specified in the CMM.
• Replacing a damaged hose.
• If no damage is found on the RAT hub, measuring the clearance between the hydraulic flexible hose and the RAT hub.
• If the clearance between the hydraulic flexible hose and the RAT hub is insufficient, and the hose is not damaged, reworking the binding of the hose.
Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The DGAC mandated the service information and issued French airworthiness directive F-2004-133, dated August 4, 2004, to ensure the continued airworthiness of these airplanes in France.
These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. We have examined the DGAC's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Among the Proposed AD, French Airworthiness Directive, and Service Bulletin.”
Operators should note that, although the parallel French airworthiness directive and service bulletin include a requirement to submit inspection results to the airplane manufacturer, this proposed AD would not require that action. Furthermore, where the service bulletin specifies to return damaged RATs to the vendor or a repair station, this proposed AD would not require that action.
In this proposed AD, the “detailed visual inspection” specified in the Airbus service bulletin is referred to as a “detailed inspection.” We have included the definition for a detailed inspection in a note in this proposed AD.
The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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 must receive comments on this AD action by May 6, 2005.
(b) None.
(c) This AD applies to Airbus Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model C4-605R Variant F airplanes (collectively called A300-600 airplanes); certificated in any category; having serial numbers 0812, 0813, 0815 through 0818 inclusive, 0821 through 0828 inclusive, and 0836 through 0838 inclusive.
(d) This AD was prompted by reports of holes in the ram air turbine (RAT) hub. We are issuing this AD to prevent a hole in the RAT hub cover. A hole in the RAT hub cover could allow water to enter the RAT governing mechanism, freeze during flight, and jam the governing mechanism. In addition, the metal particles that result from chafing between the hydraulic flexible hose and the RAT could mix with the lubricant grease and degrade the governing mechanism. In an emergency, a jammed or degraded RAT could result in failure of RAT deployment, loss of hydraulic pressure or electrical power to the airplane, and consequent reduced controllability of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 2,500 flight hours after the effective date of this AD: Do a one-time detailed inspection for evidence of chafing between the hydraulic flexible hose and the RAT hub, and any applicable related investigative and corrective actions, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Airbus Service Bulletin A300-29-6054, Revision 01, excluding Appendix 01, dated November 4, 2004. Any applicable corrective actions must be accomplished before further flight. Although the service bulletin specifies to submit certain information to the manufacturer, and to submit damaged RAMs to the vendor or a repair station, this AD does not include those requirements.
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.”
(g) Actions accomplished before the effective date of this AD, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-29-6054, excluding Appendix 01, dated June 8, 2004, are acceptable for compliance with the corresponding actions specified in this AD.
(h) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(i) French airworthiness directive F-2004-133, dated August 4, 2004, also addresses the subject of this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Fokker Model F.28 Mark 0070 and 0100 series airplanes. This proposed AD would require repetitive inspections for damage of the drive rod assembly of the aileron tab on each aileron actuator; repetitive measurements of the clearance between the aileron hydraulic lines and the drive rod; and related investigative and corrective actions if necessary. This proposed AD is prompted by a report of an aileron 2 fault caused by severe wear of the polyamide washer that is part of an anti-rotation bush assembly in the aileron attachment lug. We are proposing this AD to prevent excessive wear of the polyamide washer of the aileron actuator bush assembly, which could result in aileron flutter and loss of control of the airplane.
We must receive comments on this proposed AD by May 6, 2005.
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.
• 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 Fokker Services B.V., P.O. Box 231, 2150 AE Nieuw-Vennep, the Netherlands.
You can examine the contents of this AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1137; fax (425) 227-1149.
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
You can examine the AD docket on the Internet at
The Civil Aviation Authority—The Netherlands (CAA-NL), which is the airworthiness authority for the Netherlands, notified us that an unsafe condition may exist on certain Fokker Model F.28 Mark 0070 and 0100 series airplanes. The CAA-NL advises that a Fokker Model F.28 0100 series airplane had an aileron 2 fault. Subsequent investigation showed severe wear of the polyamide washer that is used as part of an anti-rotation bush assembly in the aileron attachment lug. The worn washer allowed the aileron actuator to rotate inboard and caused the hydraulic unions at the actuator body to chafe through the drive rod of the aileron tab. This condition, if not corrected, could result in aileron flutter and loss of control of the airplane.
Fokker Services B.V. has issued Fokker Service Bulletin SBF100-27-083, dated October 20, 2003. The service bulletin describes procedures for a one-time inspection for chafing damage of the drive rod of the aileron tab. If the drive rod shows chafing damage, the service bulletin gives procedures for corrective actions. The corrective actions include reworking the drive rod to determine the depth of the chafing damage and the straightness of the drive rod; and replacing the drive rod with a new or serviceable rod if necessary:
• For damage of less than or equal to .2 mm, no further action is required.
• For damage of greater than .2 mm but less than .5 mm, replace the drive rod within 4,000 flight hours after the inspection.
• For damage of greater than or equal to .5 mm but less than .8 mm, replace the drive rod within 500 flight hours after the inspection.
• For damage of .8 mm or greater, replace the drive rod before further flight.
The service bulletin also describes procedures for a one-time measurement for clearance between the aileron tab drive rod and the hydraulic lines of the aileron actuator. If the clearance is 4 mm or greater, the service bulletin states that no further action is required. If the clearance is less than 4 mm, the service bulletin gives procedures for one of two corrective actions: Replacing the polyamide washer with a new washer, or replacing the complete bush assembly with a new bush assembly.
After the polyamide washer or bush assembly is replaced, the service bulletin gives procedures for the related investigative action of re-measuring the clearance between the aileron tab drive rod and the aileron actuator hydraulic line. If the measurement is 4 mm or greater, the service bulletin states that no further action is required. If the measurement is less than 4 mm, the corrective action is replacing the aileron actuator with a serviceable aileron at an applicable interval, depending on the clearance:
• For clearance of 1 mm or less, replace the actuator before further flight.
• For clearance more than 1 mm, but 2 mm or less, replace the actuator within 500 flight hours after the measurement.
• For clearance of more than 2 mm to less than 4 mm, replace the actuator within 1,000 flight hours after the measurement.
Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The CAA-NL mandated the service information and issued Dutch airworthiness directive 2003-141, dated November 28, 2003, to ensure the continued airworthiness of these airplanes in the Netherlands.
These airplane models are manufactured in the Netherlands and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA-NL has kept the FAA informed of the situation described above. We have examined the CAA-NL's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service bulletin described previously, except as discussed under “Difference Between the Proposed AD and the Dutch Airworthiness Directive.”
The service bulletin and the Dutch airworthiness directive do not specify the type of inspection to perform; we refer to the inspection as a ``detailed” inspection. Note 1 of this proposed AD defines a detailed inspection.
The Dutch airworthiness directive does not include intervals for repeating the inspections of the drive rod assembly of the aileron tab, and the measurement of the clearance between the hydraulic line and the aileron tab drive rod. Instead, the Dutch airworthiness directive states that the repetitive intervals will be introduced separately in updates of the Fokker 70/100 Maintenance Review Board (MRB) document and the Aircraft Maintenance Manual (AMM). The CAA-NL requires operators in The Netherlands to use the information, including repetitive intervals, in the latest revision of the MRB and the AMM. However, since the MRB and AMM are not mandatory in the U.S., this proposed AD would mandate that operators repeat the inspections and measurement at intervals not to exceed 4,000 flight hours. We have determined that this repetitive interval would mandate the equivalent intervals specified in the MRB and AMM, and would address the unsafe condition in the same manner.
This difference has been coordinated with the CAA-NL.
The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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 must receive comments on this AD action by May 6, 2005.
(b) None.
(c) This AD applies to all Fokker Model F.28 Mark 0070 and 0100 series airplanes, certificated in any category.
(d) This AD was prompted by a report of an aileron 2 fault caused by severe wear of the polyamide washer that is part of an anti-rotation bush assembly in the aileron attachment lug. We are issuing this AD to prevent excessive wear of the polyamide washer of the aileron actuator bush assembly, which could result in aileron flutter and loss of control of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) The term “service bulletin,” as used in this AD, means the Accomplishment Instructions of Fokker Service Bulletin SBF100-27-083, dated October 20, 2003.
(g) Within 24 months or 4,000 flight hours after the effective date of this AD, whichever occurs earlier: Do the actions in paragraphs (g)(1) and (g)(2) of this AD in accordance with the service bulletin. Repeat the actions thereafter at intervals not to exceed 4,000 flight hours.
(1) Do a detailed inspection for chafing damage of the aileron tab drive rod assembly on each aileron actuator.
(2) Measure the clearance between the hydraulic line and the aileron tab drive rod.
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.”
(h) If any chafing damage that is greater than .2 mm is found during any inspection required by paragraph (g)(1) of this AD, replace the drive rod in accordance with the service bulletin, at the applicable threshold limits defined in the service bulletin.
(i) If any clearance measurement that is outside the limits defined in the service bulletin is found during the action required by paragraph (g)(2) of this AD, do the actions in paragraphs (i)(1) and (i)(2) of this AD. Do all actions in accordance with the service bulletin at the applicable threshold limits defined in the service bulletin.
(1) Replace the polyamide washer or replace the bush assembly.
(2) Do all applicable related investigative and corrective actions after the replacement in paragraph (i)(1) of this AD, including replacing the aileron actuator with a serviceable aileron actuator as applicable.
(j) The Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, has the authority to approve AMOCs for this AD, if requested in
(k) Dutch airworthiness directive 2003-141, dated November 28, 2003, also addresses the subject of this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Fokker Model F.28 Mark 1000, 2000, 3000, and 4000 series airplanes. This proposed AD would require a detailed inspection to determine the presence of incorrectly installed bushings in the attachment holes of the reinforcing strap of the left- and right-hand wings' lower skin, and corrective actions if necessary. This proposed AD is prompted by a report that bushings were installed in accordance with improper procedures in the structural repair manual. We are proposing this AD to detect and correct improperly installed bushings, which could result in reduced tensile strength of the reinforcing strap of the wing's lower skin, and consequently a reduction of the structural capability of the wing and possible wing failure.
We must receive comments on this proposed AD by May 6, 2005.
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.
• 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 Fokker Services B.V., P.O. Box 231, 2150 AE Nieuw-Vennep, the Netherlands.
You can examine the contents of this AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1137; fax (425) 227-1149.
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
You can examine the AD docket on the Internet at
The Civil Aviation Authority—The Netherlands (CAA-NL), which is the airworthiness authority for the Netherlands, notified us that an unsafe condition may exist on all Fokker Model F.28 Mark 1000, 2000, 3000, and 4000 series airplanes. The CAA-NL advises that an operator found worn attachment holes in the reinforcing strap of a wing's lower skin at wing station (WS) 2635. Subsequent investigation found that the repair bushings were improperly installed (with the bushings running completely through the wing skin and reinforcing strap) in a number of holes during the accomplishment of (optional) Fokker Service Bulletin F28/57-77. That service bulletin refers to the Structural Repair Manual (SRM) chapter 57-02-02, repair No. 3, for restoration of close tolerance holes by oversizing the holes or by installing bushings. The SRM has been updated and Fokker has issued Manual Change Notification—Maintenance F28-027 to correct the flawed SRM procedure. Although a joint with improperly installed bushings may still have adequate shear strength, its tensile strength is considerably reduced. For this reason, the applied repair is considered to be inadequate. Improperly installed bushings, if not detected and corrected, could result in reduced tensile strength of the reinforcing strap of the wing's lower skin, and consequently a reduction of the structural capability of the wing and possible wing failure.
Fokker Services B.V. has issued Fokker Service Bulletin F28/57-93, dated December 22, 2003. The service bulletin describes procedures for an inspection to determine the presence of incorrectly installed bushings in the attachment holes of the reinforcing strap of the left- and right-hand wings' lower skin at WS 2635, and the repair of bushings, if necessary.
Fokker Services B.V. has issued Fokker Service Bulletin F28/57-96, dated December 22, 2003. The service bulletin describes procedures for corrective action if the inspection reveals the presence of incorrectly installed bushings. The corrective action includes replacement of the reinforcing straps of the left- and right-hand wings' lower skin at WS 2635 with new reinforcing straps.
Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The CAA-NL mandated the service information and issued Dutch airworthiness directive 2004-021, dated February 27, 2004, to ensure the continued airworthiness of these airplanes in the Netherlands.
These airplane models are manufactured in the Netherlands and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA-NL has kept the FAA informed of the situation described above. We have examined the CAA-NL's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously.
Unlike the compliance times mandated in the Dutch airworthiness directive, this proposed AD would not permit further flight after incorrectly installed bushings or loose bolts in the attachment holes of the reinforcing strap are detected. This proposed AD would require corrective action before further flight. We find that, to achieve an adequate level of safety for the affected fleet, the corrective actions must be completed prior to further flight. Thus, we adjusted the compliance time for the corrective action, extending the initial inspection compliance time from the earlier of 6 months or 1,500 flight cycles after the effective date of the AD, as specified in the Dutch airworthiness directive, to the earlier of 12 months or 3,000 flight cycles after the effective date of the AD, as specified in this proposed AD. These differences have been coordinated with the CAA-NL.
In this proposed AD, the “inspection”' specified in the Fokker service bulletins is referred to as a “detailed inspection.” We have included the definition for a detailed inspection in a note in the proposed AD.
The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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 must receive comments on this AD action by May 6, 2005.
(b) None.
(c) This AD applies to all Fokker Model F.28 Mark 1000, 2000, 3000, and 4000 series airplanes, certificated in any category.
(d) This AD was prompted by a report that bushings were installed in accordance with improper procedures in the structural repair manual. We are issuing this AD to detect and correct improperly installed bushings which could result in reduced tensile strength of the reinforcing strap of the wing's lower skin, and consequently a reduction of the structural capability of the wing and possible wing failure.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 12 months or 3,000 flight cycles after the effective date of this AD, whichever occurs first, do a detailed inspection of the reinforcing strap of the left- and right-hand wings' lower skin at WS 2635 for improperly installed bushings in accordance with the Accomplishment Instructions of Fokker Service Bulletin F28/57-93, dated December 22, 2003.
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.”
(1) If no improperly installed bushing is found, no further action is required by this AD.
(2) If any improperly installed bushing is found, before further flight:
(i) Repair the bushing in accordance with the Accomplishment Instructions of Fokker Service Bulletin F28/57-93, dated December 22, 2003; and
(ii) Replace the reinforcing strap with a new reinforcing strap in accordance with the Accomplishment Instructions of Fokker Service Bulletin F28/57-96, dated December 22, 2003.
(g) The Manager, International Branch, ANM-116, Transport Airplane
Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(h) Dutch airworthiness directive 2004-021, dated February 27, 2004, also addresses the subject of this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Airbus Model A300 B2 and B4 series airplanes. This proposed AD would require modifying the wiring of the autopilot pitch torque limiter switch. This proposed AD is prompted by several reports of pitch trim disconnect caused by insufficient length in the wiring to the pitch torque limiter lever. We are proposing this AD to prevent possible trim loss when the flightcrew tries to override the autopilot pitch control, which could result in uncontrolled flight of the airplane.
We must receive comments on this proposed AD by May 6, 2005.
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.
• 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 Jacques Leborgne, Airbus Customer Service Directorate, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; fax (+33) 5 61 93 36 14.
You can examine the contents of this AD docket on the Internet at
Rosanne Ryburn, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2139; fax (425) 227-1149.
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
You can examine the AD docket on the Internet at
The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France,
Airbus has issued Service Bulletin A300-22-0117, dated September 7, 2004. The service bulletin describes procedures for modifying the wiring of the autopilot pitch torque limiter switch. For certain airplanes, modification includes installing new clamps and harnesses. For certain other airplanes, modification includes the following:
• Modifying the equipment and wiring in the left-hand electronics rack 80VU.
• Modifying the equipment and wiring in relay box 103VU.
• Modifying the wiring between the left-hand rack 80VU and relay box 103VU.
• Modifying the wiring between the rudder and the upper half of the fuselage.
Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The DGAC mandated the service information and issued French airworthiness directive F-2004-186, dated November 24, 2004, to ensure the continued airworthiness of these airplanes in France.
These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. We have examined the DGAC's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously.
This proposed AD would affect about 20 airplanes of U.S. registry. The proposed actions would take about between 8 and 11 work hours per airplane, depending on airplane configuration, at an average labor rate of $65 per work hour. Required parts would cost about $1,840 and $4,280 per airplane, depending on airplane configuration. Based on these figures, the estimated cost of the proposed AD for U.S. operators is between $47,200 and $99,900, or between $2,360 and $4,995 per airplane.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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 must receive comments on this AD action by May 6, 2005.
(b) None.
(c) This AD applies to Airbus Model A300 B2 and B4 series airplanes, certificated in any category; as identified in Airbus Service Bulletin A300-22-0117, dated September 7, 2004.
(d) This AD was prompted by several reports of pitch trim disconnect caused by insufficient length in the wiring to the pitch torque limiter lever. We are issuing this AD to prevent possible trim loss when the flightcrew tries to override the autopilot pitch control, which could result in uncontrolled flight of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 20 months after the effective date of this AD, modify the wiring of the autopilot pitch torque limiter switch, by doing all of the applicable actions specified in the Accomplishment Instructions of Airbus Service Bulletin A300-22-0117, dated September 7, 2004.
(g) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(h) French airworthiness directive F-2004-186, dated November 24, 2004, also addresses the subject of this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Learjet Model 23, 24, 24A, 24B, 24B-A, 24C, 24D, 24D-A, 24E, 24F, 24F-A, 25, 25A, 25B, 25C, 25D, 25F, 28, 29, 31, 31A, 35, 35A (C-21A), and 36 airplanes. This proposed AD would require a one-time inspection of the center ball of the aileron control cable or cables for a defective swage, and corrective actions if necessary. This proposed AD is prompted by a report indicating that an aileron cable failed on one affected airplane when the cable underwent a tension check. We are proposing this AD to prevent severe weakening of the aileron cable, and consequent reduced controllability of the airplane.
We must receive comments on this proposed AD by May 23, 2005.
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.
• 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 Learjet, Inc., One Learjet Way, Wichita, Kansas 67209-2942.
You can examine the contents of this AD docket on the Internet at
David Hirt, Aerospace Engineer, Systems and Propulsion Branch, ACE-116W, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone (316) 946-4156; fax (316) 946-4107.
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
You can examine the AD docket on the Internet at
We have received a report indicating that an aileron cable failed on a Learjet Model 35A (C-21A) airplane when the cable underwent a tension check while being installed. Further investigation showed that an over-sized ball was swaged onto the cable during manufacture. Swaging an over-sized ball onto a cable allows excess material into the swaging die, which causes the ball to over-swage and then sever the cable strands. This condition, if not corrected, could result in severe weakening of the aileron cable, and consequent reduced controllability of the airplane.
The subject area on Learjet Model 23, 24, 24A, 24B, 24B-A, 24C, 24D, 24D-A, 24E, 24F, 24F-A, 25, 25A, 25B, 25C, 25D, 25F, 28, 29, 31, 31A, 35, and 36 airplanes is identical to those on the affected Model 35A (C-21A) airplane. Therefore, all these airplanes may be subject to the same unsafe condition.
We have reviewed the Learjet service bulletins in the following table.
These service bulletins describe procedures for visually inspecting the center ball of the aileron control cable or cables for a defective swage, which includes an extruded shoulder and/or face deformation. If the inspection shows a defective swage, the service bulletins describe procedures for, among other actions, replacing the aileron cable with a new cable. The service bulletins also request that operators send to the manufacturer all defective parts, and a report indicating compliance with the applicable service bulletin. 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 accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and the Service Bulletins.”
Operators should note that, although the Accomplishment Instructions of the referenced service bulletin describe procedures for submitting a report showing compliance with the service bulletin and for returning any discrepant parts to the manufacturer, this proposed AD would not require those actions.
The service bulletins recommend that operators accomplish the actions “as soon as possible” within 10 flight hours after receiving the applicable service bulletin. This proposed AD would require that operators accomplish the actions within 100 flight hours, or 90 days after the effective date of the proposed AD, whichever occurs first. We find that the proposed compliance time addresses the unsafe condition soon enough to maintain an adequate level of safety for the affected fleet. In developing an appropriate compliance time for this AD we considered the degree of urgency associated with addressing the unsafe condition, and the maximum interval of time allowable for all affected airplanes to continue to operate without compromising safety.
The service bulletins describe procedures for “visually inspecting” the center ball of the aileron control cable or cables. In this proposed AD we refer to this inspection as a “detailed inspection.” Note 1 of this proposed AD defines this inspection.
There are about 1,704 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 1,136 airplanes of U.S. registry. The proposed inspection would take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $73,840, or $65 per airplane.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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 May 23, 2005.
(b) None.
(c) This AD applies to Learjet Model 23, 24, 24A, 24B, 24B-A, 24C, 24D, 24D-A, 24E, 24F, 24F-A, 25, 25A, 25B, 25C, 25D, 25F, 28, 29, 31, 31A, 35, 35A (C-21A), and 36 airplanes; certificated in any category; as identified in the Learjet alert service bulletins in Table 1 of this AD.
(d) This AD was prompted by a report indicating that an aileron cable failed on one affected airplane when the cable underwent a tension check. We are issuing this AD to prevent severe weakening of the aileron cable, and consequent reduced controllability of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 100 flight hours, or 90 days after the effective date of this AD, whichever occurs first: Do a detailed inspection of the center ball of the aileron control cable or cables for a defective swage, and before further flight replace any damaged or defective cable with a new cable. Unless otherwise specified in this AD, do all actions in accordance with the Accomplishment Instructions of the applicable service bulletin in Table 1 of this AD.
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.”
(g) As of the effective date of this AD, no person may install on any airplane an aileron control cable unless it has been inspected in accordance with paragraph (f) of this AD.
(h) Although the service bulletins in Table 1 of this AD have procedures for submitting a report showing compliance with the applicable service bulletin and for returning any discrepant parts to the manufacturer, this AD does not include those requirements.
(i) The Manager, Wichita Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Airbus Model A319, A320, and A321 series airplanes. This proposed AD would require modifying the parking brake system to automatically restore the normal parking brake if the parking brake pressure decreases below a certain threshold. This proposed AD is prompted by a report of failure of the parking brake while the airplane was on the holding point of the runway before takeoff, leading to a runway departure. We are proposing this AD to ensure normal braking is available to prevent possible runway departure in the event of failure of the parking brake.
We must receive comments on this proposed AD by May 6, 2005.
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.
• 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 Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France.
You can examine the contents of this AD docket on the Internet at
Tim Dulin, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2141; fax (425) 227-1149.
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
You can examine the AD docket on the Internet at
The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified us that an unsafe condition may exist on certain Airbus Model A319, A320, and A321 series airplanes. The DGAC advises that one operator reported failure of the parking brake while the airplane was on the holding point of the runway before takeoff, leading to a runway departure. The flight crew tried to stop the airplane with the brake pedals, but were unsuccessful. Additional reports were received from other operators of incidents of braking difficulty after the parking brake was selected. Analysis showed that the airplane is designed so that normal braking is inhibited when the parking brake is selected. In the case of parking brake loss, a flight crew operations manual (FCOM) procedure recommends immediately releasing the parking brake handle to restore braking through the pedals; however, excess pilot workload can preclude using that procedure. When the parking brake lever is selected to the ON position, the parking brake selector valve sends a signal to the braking and steering control unit, which inhibits the normal braking system. These conditions, if not corrected, could result in possible runway departure in the event of failure of the parking brake.
Airbus has issued Service Bulletin A320-32-1201, Revision 01, dated May 29, 2002. The service bulletin describes procedures for modifying the parking brake system (including installing placards) to automatically restore the normal parking brake if the parking brake pressure decreases below a certain threshold. The service bulletin also describes procedures for performing operational tests after accomplishing the modification. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The DGAC mandated the service information and issued French airworthiness directive F-2004-137, dated November 10, 2004, to ensure the continued airworthiness of these airplanes in France.
These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. We have examined the DGAC's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously.
This proposed AD would affect about 357 airplanes of U.S. registry. The proposed modification would take about 23 work hours per airplane, at an average labor rate of $65 per work hour. Required parts would cost about $5,600 per airplane. Based on these figures, the estimated cost of the proposed modification for U.S. operators is $2,532,915, or $7,095 per airplane.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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 must receive comments on this AD action by May 6, 2005.
(b) None.
(c) This AD applies to Airbus Model A319, A320, and A321 series airplanes; certificated in any category; except those modified in production by Airbus Modification 30062.
(d) This AD was prompted by a report of failure of the parking brake while the airplane was on the holding point of the runway before takeoff, leading to a runway departure. We are issuing this AD to ensure normal braking is available to prevent possible runway departure in the event of failure of the parking brake.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 52 months after the effective date of this AD: Modify the parking brake system by accomplishing all the actions specified in the Accomplishment Instructions of Airbus Service Bulletin A320-32-1201, Revision 01, dated May 29, 2002.
(g) The Manager, International Branch, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(h) French airworthiness directive F-2004-137, dated November 10, 2004, also addresses the subject of this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain McDonnell Douglas Model 717-200 airplanes. This proposed AD would require repetitively replacing and testing a certain relay of the passenger oxygen release system in the forward cabin. This proposed AD is prompted by reports of a failed relay of the passenger oxygen release system. We are proposing this AD to prevent failure of the relay, which could result in the oxygen masks failing to deploy and deliver oxygen to the passengers in the event of a rapid decompression or cabin depressurization.
We must receive comments on this proposed AD by May 23, 2005.
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.
• 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, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024).
You can examine the contents of this AD docket on the Internet at
Albert Lam, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5346; fax (562) 627-5210.
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
You can examine the AD docket on the Internet at
We have received two reports indicating the detection of a failed relay of the passenger oxygen release system on certain McDonnell Douglas Model 717-200 airplanes. The failures were detected after a popped circuit breaker on the electrical power center was found during inspection. Investigation revealed that the failures were caused by an out-of-phase power transfer between two 115-volt alternating current power sources. This condition, if not corrected, could result in the oxygen masks failing to deploy and deliver oxygen to the passengers in the event of a rapid decompression or cabin depressurization.
We have reviewed Boeing Alert Service Bulletin 717-35A0003, dated November 19, 2004. The service bulletin
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 accomplishing the actions specified in the service information described previously.
We consider this proposed AD interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we may consider additional rulemaking.
There are about 122 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 92 airplanes of U.S. registry. The proposed replacement and test would take about 2 work hours per airplane, at an average labor rate of $65 per work hour. Required parts would be free of charge. Based on these figures, the estimated cost of the proposed replacement and test for U.S. operators is $11,960, or $130 per airplane, per cycle.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator, Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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), 401113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The Federal Aviation Administrator (FAA) must receive comments on this AD action by May 23, 2005.
(b) None.
(c) This AD applies to McDonnell Douglas Model 717-200 airplanes, certificated in any category; as identified in Boeing Alert Service bulletin 717-35A0003, dated November 19, 2004.
(d) This AD was prompted by reports of a failed reply of the passenger oxygen release system. We are issuing this AD to prevent failure of the relay, which could result in the oxygen masks failing to deploy and deliver oxygen to the passengers in the event of a rapid decompression or cabin depressurization.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Replace the relay of the passenger oxygen release system in the forward cabin with a new relay and test for proper operation by doing all the actions as specified in Boeing Alert Service Bulletin 717-35A0003, dated November 19, 2004; at the applicable time specified in paragraph (f)(1) or (f)(2) of this AD. Repeat the actions at intervals not to exceed 3,100 flight cycles.
(1) For Group 1 airplanes, as identified in the service bulletin: Within 6 months after the effective date of this AD.
(2) For Group 2 airplanes, as identified in the service bulletin: Before the accumulation of 3,100 total flight cycles or within 6 months after the effective date of this AD, whichever is later.
(g) The Manager, Los Angeles 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.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Bombardier Model DHC-8-400, -401, and -402 airplanes. This proposed AD would require revising the
We must receive comments on this proposed AD by May 6, 2005.
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.
• 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 Bombardier, Inc., Bombardier Regional Aircraft Division, 123 Garratt Boulevard, Downsview, Ontario M3K 1Y5, Canada.
You can examine the contents of this AD docket on the Internet at
George Duckett, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, suite 410, Westbury, New York 11590; telephone (516) 228-7325; fax (516) 794-5531.
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
You can examine the AD docket on the Internet at
Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified us that an unsafe condition may exist on certain Bombardier Model DHC-8-400, -401, and -402 airplanes. TCAA advises that, during type certification fatigue testing, fatigue failures were discovered at the engine isolator bracket and at the orifice support tube, upper bearing, and piston plug in the shock strut assembly of the main landing gear (MLG), which are principal structural elements. The development of cracks in these principal structural elements, if not prevented, could reduce the structural integrity of the engine installation and MLG. Reduced structural integrity of the engine installation could result in separation of the engine from the airplane, and reduced structural integrity of the MLG could result in collapse of the MLG.
Bombardier has issued the following temporary revisions (TRs) to the Dash 8 Series 400 (Bombardier) Maintenance Requirements Manual, PSM 1-84-7:
• Dash 8 Series 400 (Bombardier) TR ALI-28, dated December 11, 2003; and
• Dash 8 Series 400 (Bombardier) TR ALI-37, dated March 30, 2004
TR ALI-28 describes procedures for reducing the life limits of the MLG orifice support tube having part number (P/N) 46117-1, upper bearing having P/N 46114-1, and piston plug having P/N 46137-1. TR ALI-37 describes procedures for incorporating certain structural inspection tasks to reduce the threshold for initiating repetitive detailed inspections for cracking of the engine isolator brackets. The TCAA mandated the TRs and issued Canadian airworthiness directive CF-2004-19, dated September 21, 2004, to ensure the continued airworthiness of these airplanes in Canada.
These airplane models are manufactured in Canada and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the TCAA has kept the FAA informed of the situation described above. We have examined the TCAA's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would require revising the Airworthiness Limitation section of the Instructions for Continued Airworthiness of the Dash 8 Series 400 (Bombardier) Maintenance Requirements Manual, PSM 1-84-7, to reduce the life limits of the MLG orifice
This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking.
There are about 93 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 21 airplanes of U.S. registry. The proposed actions would take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $1,365, or $65 per airplane.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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 must receive comments on this AD action by May 6, 2005.
(b) None.
(c) This AD applies to Bombardier Model DHC-8-400, -401, and -402 airplanes; certificated in any category; serial numbers 4001 and 4003 through 4094 inclusive.
This AD requires revision to a certain operator maintenance document to include a new replacement time. Compliance with this replacement time is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this replacement time, the operator may not be able to accomplish the replacement described in the revision. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (g) of this AD. The request should include a description of changes to the required replacement time that will ensure the continued damage tolerance of the affected structure. The FAA has provided guidance for this determination in Advisory Circular (AC) 25-1529.
(d) This AD was prompted by the discovery of fatigue failures, during type certification fatigue testing, at the engine isolator bracket and at the orifice support tube, upper bearing, and piston plug in the shock strut assembly of the main landing gear (MLG), which are principal structural elements. We are issuing this AD to prevent the development of cracks in these principal structural elements, which could reduce the structural integrity of the engine installation and MLG. Reduced structural integrity of the engine installation could result in separation of the engine from the airplane, and reduced structural integrity of the MLG could result in collapse of the MLG.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 30 days after the effective date of this AD, revise the AWL section of the Instructions for Continued Airworthiness of the Dash 8 Series 400 (Bombardier) Maintenance Requirements Manual, PSM 1-84-7, by doing the actions specified in paragraphs (f)(1) and (f)(2) of this AD.
(1) Reduce the life limits of the MLG orifice support tube having part number (P/N) 46117-1, upper bearing having P/N 46114-1, and piston plug having P/N 46137-1, by inserting a copy of the Dash 8 Series 400 (Bombardier) Temporary Revision ALI-28, dated December 11, 2003, into the AWL section. Thereafter, except as provided in paragraph (g) of this AD, no alternative life limits may be approved for the MLG orifice support tube, upper bearing, or piston plug.
(2) Incorporate structural inspection tasks 712001F102 and 712003F102 to reduce the threshold for initiating repetitive detailed inspections for cracking of the engine isolator brackets by inserting a copy of the Dash 8 Series 400 (Bombardier) Temporary Revision ALI-37, dated March 30, 2004, into the AWL section. Thereafter, except as provided in paragraph (g) of this AD, no alternative structural inspection threshold may be approved.
(g) The Manager, New York 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.
(h) Canadian airworthiness directive CF-2004-19, dated September 21, 2004, also addresses the subject of this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Dornier Model 328-100 and -300 series airplanes. This proposed AD would require a pressure test and detailed inspection of each fuselage drain line to determine if there is a blockage, and related investigative/corrective actions if necessary. This proposed AD is prompted by a report of leakage at one of the drain lines in the fuselage. We are proposing this AD to prevent blockage within the drain lines, causing fluids to collect. These fluids may freeze and expand, damaging the drain lines, and allowing fuel to leak into the cabin and fuel vapors to come into contact with ignition sources, which could result in consequent fire in the cabin.
We must receive comments on this proposed AD by May 6, 2005.
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.
• 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 AvCraft Aerospace GmbH, P.O. Box 1103, D-82230 Wessling, Germany.
You can examine the contents of this AD docket on the Internet at
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.
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
You can examine the AD docket on the Internet at
Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, notified us that an unsafe condition may exist on certain Dornier Model 328-100 and -300 series airplanes. The LBA advises that, during maintenance, an operator detected leakage at one of the drain lines in the fuselage. Investigation revealed that blockages within the drain line caused the leakage. The blockages allowed fluids to collect, which froze and expanded, and damaged the drain line. A damaged drain line allows fuel to leak into the cabin and fuel vapors to come into contact with ignition sources, which could result in consequent fire in the cabin.
Dornier has issued Service Bulletins SB-328-53-462, Revision 1, dated July 15, 2004 (for Model 328-100 series airplanes); and SB-328J-53-214, Revision 1, dated July 15, 2004 (for Model 328-300 series airplanes). The service bulletins describe procedures for performing a pressure test and detailed inspection of each fuselage drain line to determine if there is a blockage, and related investigative/corrective actions. The service bulletins specify that, if a drain line fails the initial pressure test, the detailed inspection must be done before further flight; otherwise, the inspection may be delayed until the next C-check. If a drain line fails the initial detailed inspection, the corrective actions include repairing that drain line or replacing it with a new drain line, and repeating the pressure test. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The LBA mandated the service information and issued German airworthiness directives D-2004-448 and D-2004-449, both effective October 14, 2004, to ensure the continued airworthiness of these airplanes in Germany.
These airplane models are manufactured in Germany and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the LBA has kept the FAA informed of the situation described above. We have examined the LBA's findings, evaluated all pertinent information, and determined that we
Operators should note that the service bulletins specify that the detailed inspection of the drain lines for blockages can be done immediately after the initial pressure test, or at a later time, but not later than “the next scheduled C-check.” The German airworthiness directives specify that the compliance time for accomplishing the detailed inspection is “not later than the next planned C-check.” Since C-check schedules vary among operators, such a nonspecific compliance time would provide no assurance that operators would do this inspection before safe flight is compromised. This proposed AD would require accomplishment of that inspection within 24 months after the effective date of this AD. In developing an appropriate compliance time for this AD, we considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the inspection. In light of all of these factors, we find a compliance time of 24 months for completing the required actions to be warranted, in that it represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety.
We estimate that this AD affects about 53 Model 328-100 series airplanes and 57 Model 328-300 series airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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 must receive comments on this AD action by May 6, 2005.
(b) None.
(c) This AD applies to Dornier Model 328-100 series airplanes without option 033F003 “Extended Range” installed, and Dornier Model 328-300 series airplanes having serial numbers 3005 through 3119 inclusive, certificated in any category.
(d) This AD was prompted by a report of leakage at one of the drain lines in the fuselage. We are issuing this AD to prevent blockage within the drain lines, causing fluids to collect. These fluids may freeze and expand, damaging the drain lines, and allowing fuel to leak into the cabin and fuel vapors to come into contact with ignition sources, which could result in consequent fire in the cabin.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 4 months after the effective date of this AD: Perform an initial pressure test and any applicable related investigative and corrective actions in accordance with the Accomplishment Instructions of Dornier Service Bulletin SB-328-53-462, Revision 1, dated July 15, 2004 (for Model 328-100 series
(g) After doing the pressure test required by paragraph (f) of this AD, but not later than 24 months after the effective date of this AD: Perform a detailed inspection and related investigative and corrective actions, in accordance with Part 2 of the Accomplishment Instructions of Dornier Service Bulletin SB-328-53-462, Revision 1, dated July 15, 2004; or SB-328J-53-214, Revision 1, dated July 15, 2004; as applicable.
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.”
(h) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(i) German airworthiness directives D-2004-448 and D-2004-449, effective October 14, 2004, also address the subject of this AD.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain MT-Propeller Entwicklung GmbH variable pitch and fixed pitch propellers with serial numbers (SNs) below 95000, which have not been overhauled since April 1994. This proposed AD would require you to perform initial and repetitive visual inspections of those propeller blades. Further, this proposed AD would require you to remove all propeller blades from service with damaged erosion sheath bonding or loose erosion sheaths and to install any missing or damaged polyurethane protective strips. This proposed AD results from reports of stainless steel leading edge erosion sheaths separating from propeller blades and reports of propeller blades missing or without polyurethane protective strips due to insufficient inspection procedures in older MT-Propeller Entwicklung GmbH Operation & Installation Manuals. We are proposing this AD to prevent erosion sheath separation leading to damage of the airplane.
We must receive any comments on this proposed AD by June 6, 2005.
Use one of the following addresses to comment 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 20590-0001.
• 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.
Contact MT-Propeller USA, Inc., 1180 Airport Terminal Drive, Deland, FL 32724; telephone (386) 736-7762, fax (386) 736-7696 or visit
Frank Walsh, Aerospace Engineer, Boston Aircraft Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803-5299; telephone (781) 238-7158, fax (781) 238-7170.
We invite you to submit any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under
We will post all comments we receive, without change, to
You may examine the docket that contains the proposal, any comments received, and any final disposition in person at the DMS Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is on the plaza level of the Department of Transportation Nassif Building at the street address stated in
The Luftfahrt-Bundesamt (LBA), which is the aviation authority for Germany, notified us that an unsafe condition may exist on certain MT-Propeller Entwicklung GmbH variable pitch and fixed pitch propellers. The LBA advises of reports of stainless steel leading edge erosion sheaths separating from propeller blades and reports of propeller blades with damaged or missing polyurethane protective strips (PU-protection tape) due to insufficient inspection procedures in older MT-Propeller Entwicklung GmbH Operation & Installation Manuals.
We have reviewed and approved the technical contents of MT-Propeller Service Bulletin (SB) No. 8A, dated July 4, 2003, which describes the visual
These propeller models, manufactured in Germany, are type-certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. In keeping with this bilateral airworthiness agreement, the LBA kept us informed of the situation described above. We have examined the LBA's findings, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States. We are proposing this AD, which would require you to:
• Visually inspect certain MT-Propeller Entwicklung GmbH variable pitch and fixed pitch propellers with SNs below 95000.
• Remove from service, certain MT-Propeller Entwicklung GmbH variable pitch and fixed pitch propellers with SNs below 95000 if the propeller blades have damaged erosion sheath bonding or loose erosion sheaths.
• Install polyurethane protective strips onto propeller blades that are missing these strips or have damaged strips.
We estimate that 103 of these MT-Propeller Entwicklung GmbH variable pitch and fixed pitch propellers installed on aircraft of U.S. registry would be affected by this proposed AD. We also estimate that it would take about 2 work hours to inspect and install the polyurethane protective strip of each affected propeller and 4 work hours to remove each affected propeller, and that the average labor rate is $65 per work hour. Required parts to inspect and install the polyurethane protective strip of each affected propeller would cost about $20. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $15,780.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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. Would 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 summary of the costs to comply with this proposal and placed it in the AD Docket. You may get a copy of this summary at the address listed under
Air transportation, Aircraft, Aviation safety, Safety.
Under the authority delegated to me by the Administrator, the Federal Aviation Administration 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 June 6, 2005.
(b) None.
(c) This AD applies to MT-Propeller Entwicklung GmbH, models MT, MTV-1, MTV-2, MTV-3, MTV-5, MTV-6, MTV-7, MTV-9, MTV-10, MTV-11, MTV-12, MTV-14, MTV-15, MTV-17, MTV-18, MTV-20, MTV-21, MTV-22, MTV-24, and MTV-25 propellers with serial numbers (SNs) below 95000, which have not been overhauled since April 1994. These propellers may be installed on but not limited to, Sukhoi SU-26, SU-29, SU-31; Yakovlev YAK-52, YAK-54, YAK-55; and Technoavia SM-92 airplanes.
(d) This AD results from reports of stainless steel leading edge erosion sheaths separating from propeller blades and reports of propeller blades with damaged or missing polyurethane protective strips (PU-protection tape) due to insufficient inspection procedures in older MT-Propeller Entwicklung GmbH Operation & Installation Manuals. We are issuing this AD to prevent erosion sheath separation leading to damage of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done.
Information about inspection procedures and acceptable limits can be found in Table 1 of this AD.
(f) During the next preflight inspection or 100-hour inspection, whichever occurs first, after the effective date of this AD, inspect all MT and MTV propellers listed in paragraph (c) of this AD, by doing the following:
(1) Determine if the erosion sheath of any propeller blade is cracked or loose; and
(2) Determine if any propeller blade has other damage out of acceptable limits.
(3) Before the next flight, remove from service those propeller blades with a cracked or loose erosion sheath, or other damage affecting airworthiness.
(g) During the next pilot's preflight inspection after the effective date of this AD, if the polyurethane protective strip on the leading edge of the inner portion of the blade is found to be damaged or missing, the polyurethane protective strip must be replaced or installed within 10-flight hours. If electrical de-icing boots are installed, no polyurethane protective strips are required.
(h) If after the effective date of this AD, any propeller blade erosion sheath found to be cracked or loose during the pilot's preflight inspection, or 100-hour inspection, or annual inspection, must be repaired, replaced, or overhauled before the next flight.
(i) If after the effective date of this AD, any propeller blade polyurethane protective strip found to be damaged or missing during the pilot's preflight inspection, or 100-hour inspection, or annual inspection, must be replaced or installed within 10-flight hours. If electrical de-icing boots are installed, polyurethane protective strips are not required.
(j) Overhaul all affected blades by December 31, 2005.
(k) The Manager, Boston Aircraft Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
(l) Special flight permits are prohibited.
(m) MT-Propeller Entwicklung GmbH, Service Bulletin No. 8A, dated July 4, 2003, pertains to the subject of this AD. LBA airworthiness directive 1994-098/2, dated September 24, 2003, also addresses the subject of this AD.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for Goodrich De-icing and Specialty Systems “FASTprop” propeller de-icers, part numbers P4E1188 series, P4E1601 series, P4E2200 series, P4E2271-10, P4E2575-7, P4E2575-10, P4E2598-10, P5855BSW, P6199SW, P6592SW, P6662SW, and P6975-11, installed. This proposed AD would require inspection, repair, or replacement of those “FASTprop” propeller de-icers that fail visual checks before the first flight each day. This proposed AD results from reports of Goodrich “FASTprop” propeller de-icers becoming loose or debonded, and detaching from propeller blades during operation. We are proposing this AD to prevent Goodrich “FASTprop” propeller de-icers from detaching from the propeller blade, resulting in damage to the airplane and possible injury to the passengers and crewmembers.
We must receive any comments on this proposed AD by May 6, 2005.
Use one of the following addresses to comment 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 20590-0001.
• 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.
Contact Goodrich De-icing and Specialty Systems, 219 Stringtown Road, Union, West Virginia 24983, telephone (330) 374-3743, for the service information referenced in this proposed AD.
You may examine the comments on this proposed AD in the AD docket on the Internet at
Melissa T. Bradley, Aerospace Engineer, Chicago Aircraft Certification Office, FAA, 2300 East Devon Avenue, Des Plaines, IL 60018-4696; telephone (847) 294-8110; fax (847) 294-7834.
We invite you to send us any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under
We will post all comments we receive, without change, to
You may examine the docket that contains the proposal, any comments received and, any final disposition in person at the DMS Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in
In September of 2004, we became aware of reports of about 200 Goodrich De-icing and Specialty Systems “FASTprop” propeller de-icers found debonded, loose, or detached from propeller blades during operation. The manufacturer is still investigating to determine the exact cause of this potential unsafe condition. This condition, if not corrected, could result in propeller de-icers detaching from propeller blades, resulting in damage to the airplane and possible injury to the passengers and crewmembers.
We have reviewed and approved the technical contents of Goodrich De-icing and Specialty Systems Alert Service Bulletin No. 30-60-00-1, dated November 15, 2004, that describes procedures for visual checks of “FASTprop” propeller de-icers before the first flight each day, and inspection, repair, or replacement of those propeller de-icers if necessary.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. We are proposing this AD, which would require inspection, repair, or replacement before further flight, of Goodrich “FASTprop” propeller de-icers if they fail the visual check before the first flight each day. The proposed AD would require you to use the service information described previously to perform these actions.
These actions are interim actions and we may take further rulemaking actions in the future.
We estimate that 3,400 Goodrich propeller de-icers are installed on airplanes of U.S. registry and would be affected by this proposed AD. We also estimate that it would take about 2 minutes per propeller blade to perform the proposed preflight visual check, about 5 minutes per propeller blade to perform the proposed inspection of de-icers that fail the visual check, and about 0.5 work hour to replace a propeller de-icer. The average labor rate is $65 per work hour. Required parts would cost about $110.00 per replacement propeller de-icer. The manufacturer has advised us that replacement de-icers will be provided at no cost to the operators. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $510,240.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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. Would 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 summary of the costs to comply with this proposal and placed it in the AD Docket. You may get a copy of this summary at the address listed under
Air transportation, Aircraft, Aviation safety, Safety.
Under the authority delegated to me by the Administrator, the Federal Aviation Administration 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:
(a) The Federal Aviation Administration (FAA) must receive comments on this airworthiness directive (AD) action by May 6, 2005.
(b) None.
(c) This AD applies to Goodrich De-icing and Specialty Systems “FASTprop” propeller de-icers, part numbers (P/Ns) P4E1188 series, P4E1601 series, P4E2200 series, P4E2271-10, P4E2575-7, P4E2575-10, P4E2598-10, P5855BSW, P6199SW, P6592SW, P6662SW, and P6975-11, installed. These propeller de-icers are installed on, but not limited to, the airplanes listed in Table 1 of this AD.
(d) This AD results from reports of Goodrich “FASTprop” propeller de-icers becoming loose or debonded, and detaching from propeller blades during operation. We are issuing this AD to prevent Goodrich “FASTprop” propeller de-icers from detaching from the propeller blade, resulting in damage to the airplane, and possible injury to passengers and crewmembers.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done.
(f) During the next preflight or 100-hour inspection, whichever occurs first, after the effective date of this AD, visually check the “FASTprop” propeller de-icers. If any “FASTprop” propeller de-icer fails the visual check, then the “FASTprop” de-icer must be inspected, repaired, or replaced as necessary before the next flight. Use paragraph 2.A of the Accomplishment Instructions of Goodrich De-icing and Specialty Systems Alert Service Bulletin (ASB) No. 30-60-00-1, dated November 15, 2004 to do these actions.
(g) If after the effective date of this AD, any “FASTprop” propeller de-icer found to have lifting, looseness, trapped air (bubbles) under the de-icer, debonding, or deteriorated edge sealer during the pilot's first preflight inspection of the day must be inspected, repaired, or replaced as necessary before the next flight. Use paragraph 2.A of the Accomplishment Instructions of Goodrich De-icing and Specialty Systems Alert Service Bulletin (ASB) No. 30-60-00-1, dated November 15, 2004 to do these actions.
(h) The Manager, Chicago Aircraft Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
(i) Under 14 CFR part 39.23, we are limiting the special flight permits for this AD by requiring that any propeller found with a loose or debonded “FASTprop” de-icer must have all de-icers removed before the flight, to maintain a balanced propeller. Information on removing de-icers can be found in paragraph 1.K.(1) of Goodrich De-icing and Specialty Systems ASB No. 30-60-00-1, dated November 15, 2004.
(j) None.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for Teledyne Continental Motors (TCM) GTSIO-520 series reciprocating engines. This proposed AD would require initial and repetitive visual inspections of the starter adapter assembly and crankshaft gear. This proposed AD would also require unscheduled visual inspections of the starter adapter assembly and crankshaft gear due to a rough-running engine. This proposed AD would also require replacement of the starter adapter shaft gear needle bearing with a certain bushing. Also, this proposed AD would require installation of a certain TCM service kit at the next engine overhaul, or at the next starter adapter replacement, whichever occurs first. Also, this proposed AD would require adding a certain placard to the instrument panel before further flight. This proposed AD results from six service difficulty reports and one fatal accident report received related to failed starter adapter assemblies. We are proposing this AD to prevent failure of the starter adapter assembly and or crankshaft gear, resulting in failure of the engine and possible forced landing.
We must receive any comments on this proposed AD by June 6, 2005.
Use one of the following addresses to comment 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 20590-001.
• 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.
You can get the service information identified in this proposed AD from Teledyne Continental Motors, Inc., PO Box 90, Mobile, AL 36601; telephone (251) 438-3411.
You may examine the comments on this proposed AD in the AD docket on the Internet at
Jerry Robinette, Senior Engineer, Propulsion, Atlanta Aircraft Certification Office, FAA, Small Airplane Directorate, One Crown Center, 1895 Phoenix Blvd., Suite 450, Atlanta, GA 30349; telephone: (770) 703-6096, fax: (770) 703-6097.
We invite you to send us any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under
We will post all comments we receive, without change, to
You may examine the docket that contains the proposal, any comments received and, any final disposition in person at the DMS Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in
Between January 1980 and January 2001, we received one loss of airplane report and 34 service difficulty reports related to failure of the starter adapter assembly or crankshaft gear or both, on TCM GTSIO-520 series reciprocating engines. On March 2, 2001, we issued Special Airworthiness Information Bulletin (SAIB) No. NE-01-17. That SAIB states the following:
• Engine failure may occur if the starter adapter viscous damper becomes inoperative, due to overheating, or other causes.
• Continued operation of an engine with an overheated viscous damper may lead to failure of the starter adapter assembly and or crankshaft gear.
• Overheating of the viscous damper may be caused by exhaust gas leakage in the nacelle area, and in particular, the engine accessory section of the engine nacelle.
• A rough-running engine such as one with a misfiring ignition system, will cause overheating of the viscous damper.
• Recommendation to perform visual inspections and parts replacement as necessary, as described in TCM Critical Service Bulletin (CSB) No. CSB94-4D.
After we issued that SAIB, we received six service difficulty reports and one fatal accident report related to failed starter adapter assemblies. The fatal accident event indicates that the airplane may not have been in compliance with TCM CSB No. CSB94-4D. This condition, if not corrected, could result in failure of the starter adapter assembly and or crankshaft gear, resulting in failure of the engine, and possible forced landing.
We have reviewed and approved the technical contents of TCM Mandatory Service Bulletin (MSB) No. MSB94-4E, dated January 24, 2005, that describes procedures for visual inspections of the starter adapter assembly and crankshaft gear and replacement of components as necessary. That MSB also describes procedures for replacement of the starter adapter shaft gear needle bearing with a bushing. That MSB also describes procedures for installation of TCM service kit, part number (P/N) EQ6642R, at next engine overhaul, or next starter adapter replacement, whichever occurs first.
Although TCM MSB No. MSB94-4E, dated January 24, 2005, is applicable to GIO-550 and GTSIO-520 series reciprocating engines, this proposed AD is only applicable to GTSIO-520 series reciprocating engines. Also, although that MSB mandates in Part 1, that magnetos must be overhauled and periodically inspected at specified times, this proposed AD does not mandate those actions.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. We are proposing this AD, which would require:
• Before further flight, adding a placard to the instrument panel within view of the pilot that states, in
• Initial and repetitive visual inspections of the starter adapter assembly and crankshaft gear, and replacement of components as necessary.
• Unscheduled visual inspections of the starter adapter assembly and crankshaft gear due to a rough-running engine, and replacement of components as necessary.
• Replacement of the starter adapter shaft gear needle bearing, P/N 537721 with bushing, P/N 654472.
• Installation of TCM service kit, P/N EQ6642R, at next engine overhaul, or at next starter adapter replacement, whichever occurs first.
The proposed AD would require you to use the service information described previously to perform the inspections and replacements.
There are about 5,300 TCM GTSIO-520 series reciprocating engines of the affected design in the worldwide fleet. We estimate that 4,240 engines installed on airplanes of U.S. registry would be affected by this proposed AD. We also estimate that it would take about one work hour per engine to perform one of the proposed inspections, and about one work hour per engine to perform the proposed bushing installation. We also estimate that it will take about six work hours per engine to install TCM service kit, P/N EQ6642R. The average labor rate is $65 per work hour. We estimate that about 25% (1,060) of the engines will require an unscheduled (rough-running engine) inspection. We also estimate that each engine will have eight 100-hour inspections per year, and two 400-hour inspections per year. We also estimate that about 50% (2,120) of the engines will require the bushing installed and TCM service kit, P/N EQ6642R installed. Required bushings would cost about $16 per engine and required service kits would cost about $800 per engine. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $5,518,932.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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. Would 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 summary of the costs to comply with this proposal and placed it in the AD Docket. You may get a copy of this summary at the address listed under
Air transportation, Aircraft, Aviation safety, Safety.
Under the authority delegated to me by the Administrator, the Federal Aviation Administration 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:
(a) The Federal Aviation Administration (FAA) must receive comments on this airworthiness directive (AD) action by June 6, 2005.
(b) None.
(c) This AD applies to Teledyne Continental Motors (TCM) GTSIO-520 series reciprocating engines. These engines are installed on, but not limited to, Twin Commander (formerly Aero Commander) model 685, Cessna model 404, 411 series, and 421 series, British Aerospace, Aircraft Group, Scottish Division model B.206 series 2 and Aeronautica Macchi, model AM-3 airplanes.
(d) This AD results from six service difficulty reports and one fatal accident report received related to failed starter adapter assemblies. We are issuing this AD to prevent failure of the starter adapter assembly and or crankshaft gear, resulting in failure of the engine and possible forced landing.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done.
(f) Before further flight, install a placard to the instrument panel in
(g) If, during an inspection required by paragraph (h), (i), (j), or (k) of this AD, you find needle bearing, part number (P/N) 537721, installed in the crankcase, replace it with bushing, P/N 654472, before reassembling components. Use the bushing installation procedure specified in Part 4 of TCM Mandatory Service Bulletin (MSB) No. MSB94-4E, dated January 24, 2005.
(h) For any engine that experiences rough running conditions regardless of time-in-service (TIS), do the following:
(1) Before further flight, perform the inspection procedures specified in Part 1 and Part 3 of TCM MSB No. MSB94-4E, dated January 24, 2005, and replace components as necessary.
(2) An engine is considered rough-running if there is a sudden increase in the perceived vibration levels that cannot be cleared by adjustment of the engine controls; particularly the fuel mixture setting. Information on a rough running engine can be found in the aircraft manufacturer's Airplane Flight Manual, Pilot's Operating Handbook, or Aircraft Owners Manual.
(i) For any engine, at the next 100-hour or annual inspection, whichever occurs first, do the following:
(1) Perform the inspection procedures specified in Part 2 of TCM MSB No. MSB94-4E, dated January 24, 2005, and replace components as necessary.
(2) Thereafter, at each 100-hour inspection, (plus or minus 10 hours), and annual inspection, perform repetitive inspections and component replacements as specified in paragraph (h)(1) of this AD.
(j) For any starter adapter with 400 hours or more TIS or unknown TIS on the effective date of this AD, do the following:
(1) Within 25 hours TIS, perform the inspection procedures specified in Part 3 of TCM MSB No. MSB94-4E, dated January 24, 2005, and replace components as necessary.
(2) Thereafter, at 400-hour TIS intervals, (plus or minus 10 hours), perform repetitive inspections and component replacements as specified in Part 3 of TCM MSB No. MSB94-4E, dated January 24, 2005, and replace components as necessary.
(k) For any starter adapter with fewer than 400 hours TIS on the effective date of this AD, do the following:
(1) Upon accumulation of 400 hours TIS, (plus or minus 10 hours), perform the inspection procedures specified in Part 3 of TCM MSB No. MSB94-4E, dated January 24, 2005, and replace components as necessary.
(2) Thereafter, at 400-hour TIS intervals, (plus or minus 10 hours), perform repetitive inspections and component replacements, as specified in Part 3 of TCM MSB No. MSB94-4E, dated January 24, 2005, and replace components as necessary.
(l) At the next engine overhaul or starter adapter replacement after the effective date of this AD, whichever occurs first, do the following:
(1) Install TCM service kit, P/N EQ6642R. Use the service kit installation procedures specified in Part 5 of TCM MSB No. MSB94-4E, dated January 24, 2005.
(2) Continue performing the inspections and component replacements specified in paragraphs (i), (j), and (k) of this AD.
(m) Special flight permits are prohibited for rough-running engines described in paragraph (h)(2) of this AD.
(n) The Manager, Atlanta Aircraft Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
(o) European Aviation Safety Agency AD 2004-0006, dated December 15, 2004, also addresses the subject of this AD.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for Turbomeca Artouste III series turboshaft engines. This proposed AD would require modification of the engine air intake assembly. This proposed AD results from a report of an in-flight
We must receive any comments on this proposed AD by June 6, 2005.
Use one of the following addresses to comment 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 20590-0001.
• 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.
Contact Turbomeca, 40220 Tarnos, France; telephone +33 05 59 74 40 00, fax +33 05 59 74 45 15, for the service information identified in this proposed AD.
Christopher Spinney, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803-5299; telephone (781) 238-7175, fax (781) 238-7199.
We invite you to send us any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under
We will post all comments we receive, without change, to
You may examine the docket that contains the proposal, any comments received, and any final disposition in person at the DMS Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is on the plaza level of the Department of Transportation Nassif Building at the street address stated in
The Direction Generale de L'Aviation Civile (DGAC), which is the airworthiness authority for France, notified the FAA that an unsafe condition may exist on Turbomeca Artouste III B, B1, and D turboshaft engines. The DGAC advises that an Artouste III B1 turboshaft engine installed in an Aerospatiale (Eurocopter—France) SA-315B LAMA helicopter, ingested a block of ice, causing an in-flight shutdown and subsequent loss of control of the helicopter. Turbomeca believes the block of ice formed at the rear of the engine air intake assembly while the helicopter was not running and parked on sloping ground.
We have reviewed and approved the technical contents of Turbomeca Artouste III Service Bulletin (SB) No 218 72 0104, dated December 24, 2003, that describes procedures for adding two additional water drain holes in the engine air intake assembly. The DGAC classified this SB as mandatory and issued AD F-2003-455, dated December 24, 2003, in order to assure the airworthiness of these Turbomeca Artouste III series engines in France.
These Turbomeca Artouste III series turboshaft engines, manufactured in France, are type-certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. In keeping with this bilateral airworthiness agreement, the DGAC kept us informed of the situation described above. We have examined the DGAC's findings, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States. For this reason, we are proposing this AD, which would require adding two additional water drain holes to the engine air intake assembly. The proposed AD would require you to use the service information described previously to perform these actions.
There are about 1,062 engines of the affected design in the worldwide fleet. We estimate that this proposed AD would affect 59 engines installed on helicopters of U.S. registry. We also estimate that it would take about two work hours per engine to perform the proposed actions, and that the average labor rate is $65 per work hour. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $7,670.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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
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. Would 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 summary of the costs to comply with this proposal and placed it in the AD Docket. You may get a copy of this summary at the address listed under
Air transportation, Aircraft, Aviation safety, Safety.
Under the authority delegated to me by the Administrator, the Federal Aviation Administration 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:
(a) The Federal Aviation Administration (FAA) must receive comments on this airworthiness directive (AD) action by June 6, 2005.
(b) None.
(c) This AD applies to Turbomeca Artouste III B, B1, and D turboshaft engines. These engines are installed on, but not limited to, Aerospatiale (Eurocopter—France) SA-315B LAMA, and Alouette III SA3160, SA-316B, and SA-316C helicopters.
(d) This AD results from a report of an in-flight shutdown and subsequent loss of control of the helicopter, due to ice ingestion into the engine. We are issuing this AD to prevent ice ingestion into the engine, which could lead to an in-flight shutdown and subsequent loss of control of the helicopter.
(e) You are responsible for having the actions required by this AD performed within nine months after the effective date of this AD, unless the actions have already been done.
(f) Within nine months from the effective date of this AD, drill an additional water drain hole in each engine air intake assembly half-cover, using paragraphs 2.B.(1) through 2.B.(5) of Turbomeca Artouste III Service Bulletin (SB) No. 218 72 0104, dated December 24, 2003.
(g) The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
(h) DGAC airworthiness directive F-2003-455, dated December 24, 2003, also addresses the subject of this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Dornier Model 328-100 and -300 series airplanes. This proposed AD would require operators to install colored identification strips on the pulley brackets, fairlead bracket assemblies, operational assemblies, and flight control cables. This proposed AD is prompted by a report that the flight control systems do not have elements that are distinctively identified. We are proposing this AD to prevent the incorrect re-assembly of the flight control system during maintenance, which could result in reduced controllability of the airplane.
We must receive comments on this proposed AD by May 6, 2005.
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.
For service information identified in this proposed AD, contact AvCraft Aerospace GmbH, P.O. Box 1103, D-82230 Wessling, Germany.
You can examine the contents of this AD docket on the Internet at
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.
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
You can examine the AD docket on the Internet at
The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, notified us that an unsafe condition may exist on certain Dornier Model 328-100 and -300 series airplanes. The LBA advises that the flight control systems on these airplane models do not have elements that are distinctively identified. Therefore, we have determined that these systems do not currently comply with Federal Aviation Regulation (FAR) 25.671 (b). FAR 25.671 (b) specifies that “each element of each flight control system must be designed, or distinctively and permanently marked, to minimize the probability of incorrect assembly that could result in the malfunctioning of the system.” Service experience with other airplane models has shown that if the elements of the flight control system are not distinctively and permanently marked, they could be re-assembled incorrectly during maintenance. Incorrect re-assembly of the flight control system during maintenance could result in reduced controllability of the airplane.
Dornier has issued Service Bulletin SB-328J-27-176, Revision 1, dated April 15, 2003, for Dornier Model 328-300 series airplanes; and Service Bulletin SB-328-27-436, Revision 1, dated April 15, 2003, for Dornier Model 328-100 series airplanes.
These service bulletins describe procedures for installing colored identification strips on the pulley brackets, fairlead bracket assemblies, operational assemblies, and flight control cables. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.
The LBA mandated the service information and issued German airworthiness directives 2003-376 and 2003-377, both dated November 11, 2003, to ensure the continued airworthiness of these airplanes in Germany.
The actions in the service bulletins in the following table must be accomplished before, or concurrently with, the actions in the Dornier Service Bulletin SB-328J-27-176, and Dornier Service Bulletin SB-328-27-436.
These airplane models are manufactured in Germany and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the LBA has kept the FAA informed of the situation described above. We have examined the LBA's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service bulletins described previously, except as discussed under “Difference Between the Proposed AD and the German Airworthiness Directives.”
The German airworthiness directives recommend that operators install the colored identification strips when the flight control cable is replaced, if that replacement comes before the next scheduled “C-Check or its equivalent.” This proposed AD does not require operators to install the colored identification strips when the flight control cable is replaced, although we recommend that operators do so if the replacement comes before the 24-month compliance time of this proposed AD.
The German airworthiness directives mandate, and the Dornier service bulletins recommend, compliance at the next scheduled “C-check or equivalent.” Because “C-check” schedules vary among operators, this proposed AD would require compliance within 24 months after the effective date of this AD. We find that 24 months correspond to normal scheduled maintenance for most affected operators and that this compliance time is appropriate for the affected airplanes to continue to operate without compromising safety.
The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
The following table provides the estimated costs for airplanes subject to the concurrent requirements described previously.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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 must receive comments on this AD action by May 6, 2005.
(b) None.
(c) This AD applies to Dornier Model 328-100 and -300 series airplanes, certificated in any category; as identified in Dornier Service Bulletin SB-328J-27-176, Revision 1, dated April 15, 2003; and Dornier Service Bulletin SB-328-27-436, Revision 1, dated April 15, 2003; as applicable.
(d) This AD was prompted by a report that the flight control systems do not have elements that are distinctively identified. We are issuing this AD to prevent the incorrect re-assembly of the flight control system during maintenance, which could result in reduced controllability of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 24 months after the effective date of this AD, install colored identification strips on the pulley brackets, fairlead bracket assemblies, operational assemblies, and flight control cables, in accordance with the Accomplishment Instructions of Dornier Service Bulletin SB-328J-27-176, Revision 1, dated April 15, 2003; or Dornier Service Bulletin SB-328-27-436, Revision 1, dated April 15, 2003; as applicable.
(g) Prior to or concurrently with the accomplishment of the actions in paragraph (f) of this AD, accomplish the actions in the applicable service bulletins listed in Table 1 of this AD.
(h) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(i) German airworthiness directive 2003-376, dated November 11, 2003; and German airworthiness directive 2003-377, dated November 11, 2003; also address the subject of this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all BAE Systems (Operations) Limited (Jetstream) Model 4101 airplanes. This proposed AD would require the overhaul of certain auxiliary components installed on the main landing gear (MLG) and nose landing gear (NLG). This proposed AD is prompted by manufacturer determination that overhaul limits need to be imposed for certain auxiliary components of the MLG and NLG. Components that exceed the established overhaul limits could fail due to fatigue, wear, and age. We are proposing this AD to prevent failure of the MLG or NLG, and consequent damage to the airplane and injury to flightcrew and passengers.
We must receive comments on this proposed AD by May 6, 2005.
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.
• 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 British Aerospace Regional Aircraft American Support, 13850 Mclearen Road, Herndon, Virginia 20171.
You can examine the contents of this AD docket on the Internet at
Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1175; fax (425) 227-1149.
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
You can examine the AD docket on the Internet at
The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, notified us that an unsafe condition may exist on all BAE Systems (Operations) Limited (Jetstream) Model 4101 airplanes. The CAA received a report of manufacturer determination that overhaul limits need to be imposed for certain auxiliary components of the MLG and NLG. Components that exceed the established overhaul limits could fail due to fatigue, wear, and age. This condition, if not corrected, could result in failure of the MLG or NLG, and consequent damage to the airplane and injury to flightcrew and passengers.
BAE Systems (Operations) Limited has issued Service Bulletin J41-32-081, dated August 6, 2002. The service bulletin describes procedures for the overhaul of certain auxiliary components installed on the MLG and NLG. Auxiliary components are the MLG shock struts, the NLG shock strut, the MLG retract actuators, the NLG retract actuator, the MLG drag braces/actuators, the MLG uplocks/actuators, the NLG downlock/actuator, the NLG uplock/actuator, and the steering selector valve.
Service Bulletin J41-32-081 refers to BAE Systems (Operations) Limited Service Bulletin J41-05-001, Revision 2, dated March 15, 2002, as an additional source of service information for calculating estimated usage of affected auxiliary components.
The CAA mandated the service information and issued British airworthiness directive 006-08-2002 to ensure the continued airworthiness of these airplanes in the United Kingdom.
This airplane model is manufactured in the United Kingdom and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA has kept the FAA informed of the situation described above. We have examined the CAA's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would require the overhaul of certain auxiliary components installed on the MLG and NLG, except as discussed under “Differences Between the Proposed AD and Referenced Service Bulletin.”
BAE Systems (Operations) Limited Service Bulletin J42-32-081 describes procedures for notifying the manufacturer of the accomplishment of the service bulletin; however, this proposed AD would not require this notification.
BAE Systems (Operations) Limited Service Bulletin J42-32-081 specifies that certain affected components must be overhauled on or before July 31, 2004; however, this proposed AD would specify that certain affected components must be overhauled within 18 months after the effective date of this proposed AD. In developing an appropriate compliance time for this AD, we considered the manufacturer's recommendation, the degree of urgency associated with the subject unsafe condition and the average utilization of the affected fleet. In light of all of these factors, we find that a compliance time of 18 months represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety. This compliance time has been coordinated with the CAA.
This proposed AD would affect about 57 airplanes of U.S. registry. The following table, using an average labor rate of $65 per hour, provides the estimated costs for U.S. operators to comply with this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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 must receive comments on this AD action by May 6, 2005.
(b) None.
(c) This AD applies to all BAE Systems (Operations) Limited (Formerly British Aerospace Regional Aircraft) Model Jetstream 4101 airplanes, certificated in any category.
(d) This AD was prompted by manufacturer determination that overhaul limits need to be imposed for certain auxiliary components of the MLG and NLG. Components that exceed the established overhaul limits could fail due to fatigue, wear, and age. We are issuing this AD to prevent failure of the MLG or NLG, and consequent damage to the airplane and injury to flightcrew and passengers.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 18 months after the effective date of this AD, overhaul auxiliary components installed on the MLG and NLG in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin J41-32-081, dated August 6, 2002, except as provided by paragraph (g) of this AD; and thereafter as specified in the “Overhaul Period” column of Table 1 of the Accomplishment Instructions of the service bulletin.
BAE Systems (Operations) Limited Service Bulletin J41-32-081 refers to BAE Systems (Operations) Limited Service Bulletin J41-05-001, Revision 2, dated March 15, 2002, as an additional source of service information for calculating estimated usage of affected auxiliary components.
(g) Although the service bulletin referenced in this AD specifies to submit certain information to the manufacturer, this AD does not include that requirement.
(h) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(i) British airworthiness directive 006-08-2002 also addresses the subject of this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Fokker Model F.28 Mark 0100 series airplanes. This proposed AD would require an inspection to determine the part number of the passenger service unit (PSU) panels for the PSU modification status, and corrective actions if applicable. This proposed AD is prompted by reported incidents of smoke in the passenger compartment during flight. One of those incidents also included a burning smell and consequently led to emergency evacuation of the airplane. We are proposing this AD to prevent overheating of the PSU panel due to moisture ingress, which could result in smoke or fire in the passenger cabin.
We must receive comments on this proposed AD by May 6, 2005.
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.
• 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 Fokker Services B.V., P.O. Box 231, 2150 AE Nieuw-Vennep, the Netherlands.
You can examine the contents of this AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1137; fax (425) 227-1149.
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
You can examine the AD docket on the Internet at
The Civil Aviation Authority—The Netherlands (CAA-NL), which is the airworthiness authority for the Netherlands, notified us that an unsafe condition may exist on certain Fokker Model F.28 Mark 0100 series airplanes, equipped with Grimes Aerospace passenger service unit (PSU) panels having part number (P/N) 10-1178-( ) or 10-1571-( ). The CAA-NL advises that operators have reported incidents of smoke in the passenger compartment during flight. One of those incidents also included a burning smell during flight and consequently led to the airplane's return to the airport and emergency evacuation. Investigation revealed that water leaking onto the electrical connector of the PSU panel could cause overheating of the PSU panel. This condition, if not corrected, could result in smoke or fire in the passenger cabin.
Fokker Services B.V. has issued Service Bulletin SBF100-25-097, dated December 30, 2003. The service bulletin describes procedures for inspecting to determine the part number of the PSU panels for the PSU modification status, and corrective actions if applicable. The corrective actions include the following:
• For Grimes Aerospace PSU panels having P/N 10-1178-() or 10-1571-() that have been reidentified as “REV AE” or “REV C,” as applicable: Sealing the PSU panel/airplane interface connector if necessary, and cleaning the plug and receptacle of the PSU panel/airplane interface connector.
• For Grimes Aerospace PSU panels having P/N 10-1178-() or 10-1571-() that have not been reidentified as “REV AE” or “REV C,” as applicable: Modifying the PSU panel, sealing the PSU panel/airplane interface connector if necessary, and cleaning the plug and receptacle of the PSU panel/airplane interface connector.
Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The CAA-NL mandated the service information and issued Dutch airworthiness directive 2004-022, dated February 27, 2004, to ensure the continued airworthiness of these airplanes in the Netherlands.
The Fokker service bulletin refers to Grimes Aerospace Service Bulletin 10-1178-33-0040 (for PSU panel P/N 10-1178-()), Revision 1, dated March 25, 1996; and Service Bulletin 10-1571-33-0041 (for PSU panel P/N 10-1571-()), dated October 15, 1993; as additional sources of service information for modifying the PSU panel.
This airplane model is manufactured in the Netherlands and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA-NL has kept the FAA informed of the situation described above. We have examined the CAA-NL's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and Dutch Airworthiness Directive.”
The Dutch airworthiness directive only requires an inspection to determine the modification status of the PSU panels. This proposed AD, however, would require an inspection to determine whether Grimes Aerospace PSU panels having P/N 10-1178-( ) or 10-1571-( ) are installed and the modification status of the PSU panels. Since the PSU panels are a rotatable part, this inspection is necessary to determine whether an airplane is affected by the unsafe condition of this AD.
This proposed AD would affect about 61 airplanes of U.S. registry. The proposed actions would take about 5 work hours per airplane, at an average labor rate of $65 per work hour. Required parts would cost about $6 per airplane. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $20,191, or $331 per airplane.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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 must receive comments on this AD action by May 6, 2005.
(b) None.
(c) This AD applies to all Fokker Model F.28 Mark 0100 series airplanes, certificated in any category.
(d) This AD was prompted by reported incidents of smoke in the passenger compartment during flight. One of those incidents also included a burning smell and consequently led to emergency evacuation of the airplane. We are issuing this AD to prevent overheating of the PSU panel due to moisture ingress, which could result in smoke or fire in the passenger cabin.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 36 months after the effective date of this AD, inspect to determine if Grimes Aerospace PSU panels having part number (P/N) 10-1178-( ) or 10-1571-( ) are installed and the PSU modification status if applicable, and do any corrective actions if applicable, by doing all of the actions specified in the Accomplishment Instructions of Fokker Service Bulletin SBF100-25-097, dated December 30, 2003.
Fokker Service Bulletin SBF100-25-097, dated December 30, 2003, refers to Grimes Aerospace Service Bulletin 10-1178-33-0040 (for PSU panel P/N 10-1178-( )), Revision 1, dated March 25, 1996; and Service Bulletin 10-1571-33-0041 (for PSU panel P/N 10-1571-( )), dated October 15, 1993, as additional sources of service information for modifying the PSU panel.
(g) As of the effective date of this AD, no person may install a PSU panel, P/Ns 10-1178-( ) and 10-1571-( ), on any airplane, unless it has been inspected and any corrective actions if applicable have been done in accordance with paragraph (f) of this AD.
(h) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(i) Dutch airworthiness directive 2004-022, dated February 27, 2004, also addresses the subject of this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Bombardier Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes. This proposed AD would require revising the airworthiness limitations section of the Instructions for Continued Airworthiness by incorporating new and revised structural inspection procedures and new and revised inspection intervals for the longitudinal skin joints in the fuselage pressure shell. This proposed AD would also require phase-in inspections and repair of any crack found during any phase-in inspection. This proposed AD is prompted by a report indicating that visual inspections were not adequate for detecting fatigue cracking in portions of the longitudinal skin joints in the fuselage pressure shell. We are proposing this AD to detect and correct fatigue cracking of the longitudinal skin joints in the fuselage pressure shell, which could affect the structural integrity of the airplane, and result in loss of cabin pressurization during flight.
We must receive comments on this proposed AD by May 6, 2005.
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.
• 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 Bombardier, Inc., Bombardier Regional Aircraft Division, 123 Garratt Boulevard, Downsview, Ontario M3K 1Y5, Canada.
You can examine the contents of this AD docket on the Internet at
David Lawson, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, suite 410, Westbury, New York 11590; telephone (516) 228-7327; fax (516) 794-5531.
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
You can examine the AD docket on the Internet at
Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified us that an unsafe condition may exist on certain Bombardier Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes. TCCA advises that the existing visual inspections in the airworthiness limitations section of the Instructions for Continued Airworthiness were not adequate for detecting fatigue cracking in portions of the longitudinal skin joints in the fuselage pressure shell. Those areas were hidden by other structures. Fatigue cracking of the fuselage longitudinal skin joints, if not detected and corrected, could affect the structural integrity of the airplane, and result in loss of cabin pressurization during flight.
TCCA has issued Canadian airworthiness directive CF-2004-16, dated September 7, 2004, to ensure the continued airworthiness of these airplanes in Canada. The Canadian airworthiness directive requires revising the Transport Canada-approved maintenance program by incorporating new and revised structural inspection procedures and new and revised inspections intervals for the longitudinal skin joints in the fuselage pressure shell, as introduced in the temporary revisions (TR) to the applicable Bombardier DHC-8 Maintenance Program Manual, listed in the following tables. The TRs to the maintenance task cards (MTC) describe new and revised structural inspections. The TRs to the airworthiness limitations (AWL) describe new structural inspection intervals.
These airplane models are manufactured in Canada and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, TCCA has kept the FAA informed of the situation described above. We have examined TCCA's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would require revising the airworthiness limitations section of the Instructions for Continued Airworthiness by incorporating new and revised structural inspection procedures and new and revised inspection intervals for the longitudinal skin joints in the fuselage pressure shell, except as discussed under “Differences Between the Proposed AD, Canadian Airworthiness Directive, and Service Information” This proposed AD would also require phase-in inspections and repair of any crack found during any phase-in inspection.
The MTCs specify that you may contact the manufacturer for instructions on how to repair cracks in the longitudinal skin joints in the fuselage pressure shell, but this proposed AD would require you to repair those cracks using a method that we or TCCA (or its delegated agent) approve. In light of the type of repair that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this proposed AD, a repair we or TCCA approve would be acceptable for compliance with this proposed AD.
Although the Canadian airworthiness directive includes Bombardier Model DHC-8-314 airplanes, the applicability of this proposed AD does not include that airplane model. That airplane model is not included on the most recent type certificate data sheet for the affected models.
TCCA is aware of these differences.
In this proposed AD, the “detailed visual inspection” specified in the Bombardier temporary revision is referred to as a “detailed inspection.” We have included the definition for a detailed inspection in Note 1 of this proposed AD.
The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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 must receive comments on this AD action by May 6, 2005.
(b) None.
(c) This AD applies to Bombardier Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes; certificated in any category; serial number 003 and subsequent.
This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (l) of this AD. The request should include a description of changes to the required inspections that will ensure the continued damage tolerance of the affected structure. The FAA has provided guidance for this determination in Advisory Circular (AC) 25-1529.
(d) This AD was prompted by a report indicating that visual inspections were not adequate for detecting fatigue cracking in portions of the longitudinal skin joints in the fuselage pressure shell. We are issuing this AD to detect and correct fatigue cracking of the longitudinal skin joints in the fuselage pressure shell, which could affect the structural integrity of the airplane, and result in loss of cabin pressurization during flight.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 30 days after the effective date of this AD: Revise the AWL section of the Instructions for Continued Airworthiness by incorporating the contents of the applicable de Havilland, Inc., temporary revision (TR) listed in Table 1 of this AD into the AWL section of the applicable Bombardier DHC-8 Maintenance Program Support Manual.
Thereafter, except as provided by paragraphs (g) and (l) of this AD, no alternative structural inspection intervals may be approved for the longitudinal skin joints in the fuselage pressure shell.
(g) When the information in the applicable de Havilland, Inc., TR identified in Table 1 of this AD has been included in the general revisions of the applicable PSM identified in Table 1 of this AD, the general revisions may be inserted in the PSM, and the applicable TR may be removed from the AWL section of the Instruction for Continued Airworthiness.
(h) At the times specified in paragraph (i) of this AD, perform the detailed and eddy current inspections, as applicable, of the longitudinal skin joints in the fuselage pressure shell specified in the TR for the applicable Dash 8 (de Havilland, Inc.,) maintenance task card (MTC) listed in Table 2 of this AD.
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.”
(i) Perform the inspections required by paragraph (h) of this AD at the applicable time specified in paragraph (i)(1), (i)(2), or (i)(3) of this AD.
(1) For all airplanes with 40,000 total flight cycles or less as of the effective date of this AD: At the times specified in the applicable temporary revision to the Airworthiness Limitations (AWL) listed in Table 1 of this AD.
(2) For airplanes with more than 40,000 total flight cycles but less than 57,500 total flight cycles as of the effective date of this AD:
(i) For Model -102, -103, -301, -311, and -315 airplanes: Within 5,000 flight hours after the effective date of this AD or prior to the accumulation of 60,000 total flight cycles, whichever is first.
(ii) For Model -106, -201, and -202 airplanes: Within 5,000 flight hours after the effective date of this AD or prior to the accumulation of 60,346 total flight cycles, whichever is first.
(3) For all airplanes with 57,500 total flight cycles or more as of the effective date of this AD: Within 12 months or 2,500 flight cycles after the effective date of this AD, whichever is first.
(j) Repeat the inspections required by paragraph (h) of this AD thereafter at the intervals specified in the applicable temporary revision to the AWL required by paragraph (f) of this AD.
(k) If a crack is found in a longitudinal skin joint during any phase-in inspection required by paragraph (h) of this AD, and the MTC specifies contacting Bombardier for repair information: Before further flight, repair the affected longitudinal skin joint in accordance with a method approved by either the Manager, New York ACO; or Transport Canada Civil Aviation (or its delegated agent).
(l) The Manager, New York ACO, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(m) Canadian airworthiness directive CF-2004-16, dated September 7, 2004, also addresses the subject of this AD.
Federal Communications Commission.
Proposed rule.
This document sets forth three proposals to amend the FM Table of Allotments, Section 73.202(b) of the Commission's rules, 47 CFR 73.202(b). The Commission requests comment on a petition filed by Dana J. Puopolo. Petitioner proposes the allotment of Channel 255A at Mojave, California, as a third local service. Channel 255A can be allotted at Mojave in compliance with the Commission's minimum distance separation requirements with a site restriction of 10.3 km (6.4 miles) northeast of Mojave. The proposed coordinates for Channel 255A at Mojave are 35-06-07 North Latitude and 118-04-41 West Longitude. In addition, in order to accommodate the allotment of Channel 255A at Mojave, Petitioner
Comments must be filed on or before May 9, 2005, and reply comments on or before May 24, 2005.
Federal Communications Commission, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the designated petitioner as follows: Dana J. Puopolo, 2134 Oak Street, Unit C, Santa Monica, California 90495; Charles Crawford, 4553 Bordeaux Avenue, Dallas, Texas 75205.
Deborah A. Dupont, Media Bureau (202) 418-7072.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket Nos. 05-109, 05-110, and 05-111, adopted March 16, 2005, and released March 18, 2005. The full text of this Commission document is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, (800) 378-3160, or via the company's Web site,
The Commission further requests comment on a petition filed by Charles Crawford. Petitioner proposes the allotment of Channel 290A at Stringtown, Oklahoma, as a first local service. Channel 290A can be allotted at Stringtown in compliance with the Commission's minimum distance separation requirements with a site restriction of 10.0 km (6.2 miles) southwest of Stringtown. The proposed coordinates for Channel 290A at Stringtown are 34-23-04 North Latitude and 96-05-51 West Longitude. In addition, in order to accommodate the allotment of Channel 290A at Stringtown, Petitioner further proposes to substitute Channel 252A for vacant Channel 290A at Haileyville, Oklahoma, and to change the FM Table of allotments at Haileyville by deleting Channel 290A and adding Channel 252A. The proposed coordinates for Channel 252A at Haileyville, Oklahoma, are 34-45-18 NL and 95-38-24 WL. The allotment requires a site restriction of 12.2 km (7.6 miles) southwest of Haileyville.
The Commission further requests comment on a petition filed by Dana J. Puopolo. Petitioner proposes the allotment of Channel 264A at Cumberland Head, New York, as a first local service. Channel 264A can be allotted at Cumberland in compliance with the Commission's minimum distance separation requirements with a site restriction of 6.6 km (4.1 miles) east of Cumberland Head. The proposed coordinates for Channel 264A at Cumberland are 44-43-12 North Latitude and 73-19-12 West Longitude. Concurrence in a specially negotiated allotment by the Government of Canada is required because the proposed allotment is located within 320 kilometers (199 miles) of the U.S.-Canadian border and would be short-spaced to Station CBF(FM), Channel 264C1, Montreal, Quebec, Canada.
The Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments,
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:
1. The authority citation for Part 73 continues to read as follows:
47 U.S.C. 154, 303, 334 and 336.
2. Section 73.202(b), the Table of FM Allotments under California, is amended by adding Channel 255A at Mojave, by removing Channel 255A and by adding Channel 247A at Trona.
3. Section 73.202(b), the Table of FM Allotments under New York, is amended by adding Cumberland Head, Channel 264A.
4. Section 73.202(b), the Table of FM Allotments under Oklahoma, is amended by removing Channel 290A and adding Channel 252A at Haileyville and by adding Stringtown, Channel 290A.
Federal Communications Commission.
Proposed rule.
The Audio Division seeks comment on a petition filed by LSM Radio Partners LLC, licensee of Station WWWK(FM), Channel 288C2, Marathon, Florida, proposing the allotment of Channel 289A to Sugarloaf Key, Florida, as its first local service. To accommodate this allotment, this document also requests the reallotment of Channel 288C2 from Marathon to Islamorada, Florida, as its second local service and modification of the Station WWWK license accordingly. Channel 289A can be allotted to Sugarloaf Key in conformity with the Commission's rules, provided there is a site restriction of 3.6 kilometers (2.2 miles) southwest at coordinates 24-37-30 NL and 81-32-30 WL. Channel 288C2 can be reallotted to Islamorada, consistent with the minimum distance separation requirements of Section 73.207(b) of the Commission's rules, provided there is a site restriction of 15.5 kilometers (9.6 miles) northeast at coordinates 25-01-23 NL and 80-30-06 WL. In accordance with the provisions of Section 1.420(i) of the Commission's rules, we shall not accept competing expressions of interest
Comments must be filed on or before May 9, 2005, and reply comments on or before, May 24, 2005.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner, as follows: David G. O'Neil, Esq., Counsel, LSM Radio Partners LLC, Rini Coran, PC, 1501 M Street, NW., Suite 1150, Washington, DC 20005.
Rolanda F. Smith, Media Bureau, (202) 418-2180.
This is a summary of the Commission's Notice of Proposed Rule Making, MB Docket No. 05-107, adopted March 16, 2005, and released March 18, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC, 20054, telephone 1-800-378-3160 or
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments,
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334 and 336.
2. Section 73.202(b), the Table of FM Allotments under Florida, is amended by adding Channel 288C2 at Islamorada, removing Channel 288C2 at Marathon, and by adding Sugarloaf Key, Channel 289A.
Federal Communications Commission.
Proposed rule.
The Audio Division requests comment on a petition filed by Capstar TX Limited Partnership to reallot, downgrade, and modify its liceense for Station WVBZ(FM) from Channel 262C at High Point, North Carolina, to Chanel 262C0 at Liberty, North Carolina, as a first local service. Pursuant to Section 1.420(i) of the Commission's Rules, we shall not accept competing expressions of interest pertaining to the use of Channel 262C0 at Liberty. Channel 262C0 can be allotted to Liberty with a site restriction of 17.6 kilometers northeast at reference coordinates of 35-58-57 and 79-27-29.
Comments must be filed on or before May 9, 2005, and reply comments on or before May 24, 2005.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner, as follows: Marissa G. Repp, Esq., Tarah S. Grant, Esq., Hogan & Hartson LLP, 555 Thirteenth Street, NW., Washington, DC 20004-1109 (Counsel for Capstar TX Limited Partnership).
Andrew J. Rhodes, Media Bureau, (202) 418-2180.
This is a summary of the Commission's Notice of Proposed Rule Making, MB Docket No. 05-115, adopted March 16, 2005, and released March 18, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20054, telephone 1-800-378-3160 or
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments,
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334 and 336.
2. Section 73.202(b), the Table of FM Allotments under North Carolina, is amended by adding Liberty, Channel 262C0, and by removing Channel 262C at High Point.
Federal Communications Commission.
Proposed rule.
The Audio Division requests comment on a petition filed by Charles Crawford, requesting the allotment of Channel 236C1 at Hale Center, Texas, as a first local aural service. Channel 236C1 can be allotted to Hale Center in compliance with the Commission's minimum distance separation requirements with a site restriction of 30.6 kilometers northeast at reference coordinates of 34-13-00 NL and 101-34-00 WL.
Comments must be filed on or before May 9, 2005, and reply comments on or before May 24, 2005.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner, his counsel, or consultant, as follows: Charles Crawford, 4553 Bordeaux Ave., Dallas, Texas 75205; and Gene A. Bechtel, Esq., Law Office of Gene Bechtel, Suite 600, 1050 17th Street, NW., Washington, DC 20036.
Andrew J. Rhodes, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 05-114, adopted March 16, 2005 and released March 18, 2005. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20054, telephone 1-800-378-3160 or
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334 and 336.
2. Section 73.202(b), the Table of FM Allotments under Texas, is amended by adding Hale Center, Channel 236C1.
Federal Communications Commission.
Proposed rule.
This document sets forth a proposal to amend the FM Table of Allotments, Section 73.202(b) of the Commission's rules, 47 CFR 73.202(b). The Audio Division requests comment on a petition filed by George S. Flinn, Jr., proposing to allot Channel 277C as the community's fourth local aural broadcast service. The proposed coordinates for Channel 277C at Alturas, California, are 41-31-30 NL and 120-19-45 WL. The allotment will require a site restriction of 18.2 km (11.3 miles) east of Alturas.
Comments must be filed on or before May 9, 2005, and reply comments on or before May 24, 2005.
Federal Communications Commission, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve counsel for the petitioner as follows: Stephen C. Simpson, Esq., 1090 Vermont Avenue, NW., Suite 800, Washington, DC 20005.
Deborah A. Dupont, Media Bureau (202) 418-7072.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 05-123; adopted March 16, 2005, and released March 18, 2005. The full text of this Commission document is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, (800) 378-3160, or via the company's Web site,
The Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments,
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:
1. The authority citation for Part 73 continues to read as follows:
47 U.S.C. 154, 303, 334 and 336.
2. Section 73.202(b), the Table of FM Allotments under California, is amended by adding Channel 277C at Alturas.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Withdrawal of notice of proposed rulemaking.
The Research and Special Programs Administration—the predecessor agency to the Pipeline and Hazardous Materials Safety Administration (PHMSA)—and the Environmental Protection Agency (EPA) issued final rules in 1980 requiring that a manifest accompany each shipment of hazardous waste during transportation. In 49 CFR 172.205, PHMSA provided that the uniform manifest “may be used as the shipping paper required by” the Hazardous Materials Regulations, so long as it contained all the required information. On May 22, 2001, EPA published a notice of proposed rulemaking (NPRM) to revise the hazardous waste manifest system. One of EPA's proposed changes would have allowed the uniform manifest to be prepared and transmitted electronically from the generator to the disposal facility, rather than requiring it to accompany the shipment. EPA is deferring final action on the electronic manifest pending further analysis, outreach, and possible supplemental proposals. Therefore, PHMSA is withdrawing an NPRM published on August 8, 2001, that would have amended the Hazardous Materials Regulations on the use of the Uniform Hazardous Waste Manifest for shipments of hazardous wastes. The changes proposed in that NPRM would have accommodated changes proposed by EPA. PHMSA proposed to require that, if the generator of a hazardous waste prepares an electronic manifest, either a physical copy of the electronic manifest or another document containing the information required for a shipping paper must accompany the hazardous waste in transportation.
Mr. Darral Relerford, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration, 202-366-8553.
Under the authority of the Resource Conservation and Recovery Act (RCRA; 42 U.S.C. 6901,
In 1980, EPA and PHMSA issued final rules requiring that a manifest accompany each shipment of hazardous waste during transportation.
On March 20, 1984, 49 FR 10490 (EPA), 10507 (PHMSA), EPA and PHMSA concurrently amended their regulations to adopt the current uniform manifest form in order to address the problems resulting from “a proliferation of manifests as States decided to develop and print their own forms.” Under the current regulations, a generator may use the uniform manifest form for wastes regulated solely by a State, but a State may not “impose enforcement sanctions on a transporter during transportation of the shipment for failure of the form to include preprinted information or optional State information items,” 40 CFR 271.10(h)(2).
On May 22, 2001, EPA published a notice of proposed rulemaking (NPRM) to revise the hazardous waste manifest system (66 FR 28240). One of EPA's proposed changes would have allowed the uniform manifest to be prepared and transmitted electronically from the generator to the disposal facility, rather than requiring it to accompany the shipment. EPA received 64 comments in response to the May 22, 2001, proposed rule from hazardous waste generators, transporters, waste management firms, consultants, an information technology vendor and ten state hazardous waste agencies. The revisions proposed in May 2001 aimed to reduce the manifest system's paperwork burden on users, while enhancing the effectiveness of the manifest as a tool to track hazardous waste shipments that are shipped from the site of generation to treatment, storage, or disposal facilities (TSDFs).
On August 8, 2001, PHMSA published a notice of proposed rulemaking (NPRM) (66 FR 41490). PHMSA proposed to revise its regulations on the use of the Uniform Hazardous Waste Manifest for shipments of hazardous wastes to accommodate the changes proposed by the Environmental Protection Agency (EPA). The intended effect of this proposed rule was to maintain consistency between EPA's and PHMSA's requirements. PHMSA proposed to modify 49 CFR 172.205 to provide that, when an electronic manifest is used, the hazardous waste must be accompanied by a physical shipping paper that can be either (1) a print-out (paper copy) of the electronic manifest or (2) a separate shipping paper that meets all of the shipping paper requirements in 49 CFR, subpart C of part 172. In addition, to prevent confusion by enforcement officials, if an electronic manifest is being used in the transportation of a hazardous waste, the shipping paper or copy of the electronic manifest must indicate on the document
More than 18 commenters submitted written comments in response to the NPRM, including representatives of waste treatment and disposal facilities, emergency responders, suppliers of industrial gases and related equipment and selected chemicals, shippers, carriers, federal and state governmental agencies and private citizens. Many commenters agreed that an electronic manifest would not provide emergency responders with the information as to the nature and hazards of materials in a transport vehicle or freight container if an electronic translator would not be available during an incident in transport.
In a final rulemaking published on March 4, 2005 (70 FR 10776), EPA indicates that the comments addressing the electronic manifest (“e-manifest”) proposal raise significant substantive issues that merit further analysis and stakeholder outreach prior to adopting a final approach.
EPA stated the key electronic manifest issues that must be resolved include: (1) Whether the e-manifest should be decentralized as proposed and hosted by multiple private systems, centrally by EPA or by another party; (2) if a decentralized approach were to be adopted, how EPA's standards should address interoperability of private systems; (3) whether the final e-manifest approach should be integrated with biennial reporting or other functions supported by EPA, the states or other agencies; (4) what electronic signature methods should be included in the final rule; and, (5) the technical rigor and detail necessary in EPA's final standards to ensure a workable approach to the electronic manifest.
Therefore, EPA has decided to separate the electronic manifest from the form revisions portion of the final rulemaking. EPA is deferring final action on the electronic manifest pending further analysis, outreach, and possible supplemental proposals. In a future rulemaking PHMSA and EPA may reconsider proposals to allow the use of an electronic manifest for hazardous waste shipments. Accordingly, we are withdrawing the NPRM and terminating Docket No. PHMSA-01-10292 (HM-206E).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
We, the NMFS, have completed an update of an Endangered Species Act (ESA) status review for the North American green sturgeon (
Comments on this proposal must be received by July 5, 2005. A public hearing will be held promptly if any person so requests by May 23, 2005. Notice of the location and time of any such hearing will be published in the
You may submit comments by any of the following methods:
• E-Mail:
• Federal e-Rulemaking Portal:
• Mail: Submit written comments to Chief, Protected Resources Division, Southwest Region, National Marine Fisheries Service, 501 West Ocean Blvd., Suite 4200, Long Beach, CA, 90802-4213.
The updated green sturgeon status review and other reference materials regarding this determination can be obtained via the Internet at:
Melissa Neuman, NMFS, Southwest Region (562) 980-4115; Scott Rumsey, NMFS, Northwest Region (503) 872-2791; or Lisa Manning, NMFS, Office of Protected Resources (301) 713-1401.
On June 12, 2001, we received a petition from the Environmental Protection Information Center, Center
The BRT considered the following information in order to assess risk factors for each green sturgeon DPS: (1) abundance trends from fisheries data; (2) the effects of fishing bycatch; (3) the possible loss of spawning habitat in rivers where spawning is reported to have occurred historically, but apparently no longer does; (4) concentration of spawning in the Klamath and Sacramento River systems; (5) lack of adequate population abundance data; (6) potentially lethal water temperatures and adverse effects of contaminants; (7) entrainment (defined here as loss of green sturgeon due to water diversion) by water projects; and (8) adverse effects of non-native species. Based on the 2002 risk assessment, we determined on January 23, 2003, that neither DPS warranted listing as threatened or endangered (68 FR 4433). Uncertainties in the structure and status of both DPSs led us to add them to the Species of Concern List (formerly the candidate species list; 69 FR 19975; April 15, 2004). Along with the finding, we announced that we would reevaluate the status of green sturgeon in 5 years.
On April 7, 2003, the Environmental Protection Information Center (and other Plaintiffs) challenged our “not warranted” finding for green sturgeon. The U.S. District Court for the Northern District of California issued an order on March 2, 2004, which set aside our “not warranted” finding and remanded the matter to us for redetermination of whether green sturgeon is in danger of extinction throughout all or a significant portion of its range, or is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. The U.S. District Court's March 2004 remand was issued because the Court was not satisfied with our examination of whether purported lost spawning habitat constituted a significant portion of either DPS' range. We reestablished the BRT in the early summer of 2004 and added a new member from USGS who possessed considerable knowledge of green sturgeon. The BRT was asked to consider recent scientific and commercial information available regarding the biological status of green sturgeon and to assist us in assessing the viability of the species throughout all or a significant portion of its range. We published a notice on June 18, 2004, soliciting information from the public to assist us in updating our status review and making a new listing determination (69 FR 34135).
In addition to the information solicited during the first status review, we solicited any new information beyond that considered in the 2002 green sturgeon status review or the January 2003 1-year “not warranted” finding on the following topics for the Northern and Southern DPSs of green sturgeon: (1) new genetic, morphological, physiological, or ecological information relevant to DPS identification; (2) current or historic information documenting the geographic extent (e.g., area, river mile distance) and magnitude (e.g., abundance of spawning females, reproductive output) of spawning in particular river systems (e.g., Fraser River, Umpqua River, South Fork Trinity River, Eel River, Feather River, and San Joaquin River); (3) information documenting the current geographic extent and magnitude of spawning in areas other than where it is known to presently occur (i.e., areas other than the Sacramento River, Klamath River and Rogue River); (4) the legitimacy of references used to support information regarding current or historic spawning in the systems mentioned above in (2) and (3), particularly citations by Houston (1988) for the Fraser River; Lauman
The public comment period closed on August 17, 2004. The BRT convened to draft an updated status review in November 2004.
On January 27, 2005, we distributed the updated status review to co-managers (i.e., States of Washington, Oregon and California, Yurok and Hoopa Tribes, FWS, and the California Bay-Delta Program) for review. The final updated status review for green sturgeon was completed by the BRT on February 22, 2005, and submitted to NMFS Regional Offices for further consideration prior to the publication of this notice.
A thorough account of green sturgeon biology and life history may be found in the previous 1-year finding (68 FR 4433; January 23, 2003) and the updated status review (Adams
The green sturgeon is the most widely distributed member of the sturgeon family Acipenseridae. Like all sturgeon species it is anadromous, but it is also the most marine-oriented of the sturgeon species. Green sturgeon are known to range in nearshore marine waters from Mexico to the Bering Sea and are commonly observed in bays and estuaries along the western coast of North America, with particularly large concentrations entering the Columbia River estuary, Willapa Bay, and Grays Harbor during the late summer (Moyle
Little is known about adult green sturgeon feeding. Adults in the Sacramento-San Joaquin Delta are reported to feed on benthic invertebrates including shrimp, mollusks, amphipods, and even small fish (Moyle
Adult green sturgeon are thought to spawn every 3 to 5 years (Tracy, 1990), but new information suggests that spawning could occur as frequently as every 2 years (Lindley and Moser, pers. comm., 2004). Adults typically migrate into fresh water beginning in late February (Moyle
Green sturgeon larvae first feed at 10 days post hatch and grow quickly reaching a length of 66mm and a weight of 1.8 g in 3 weeks of exogenous feeding. Metamorphosis to the juvenile stage is complete at 45 days. Juveniles continue to grow rapidly, reaching 300mm in 1 year and over 600mm within 2 3 years for the Klamath River (Nakamoto
Green sturgeon disperse widely in the ocean after their out-migration from freshwater (Moyle
The ESA defines species as “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife that interbreeds when mature” 16 U.S.C. 1532(16). This definition allows for the recognition of DPSs at levels below taxonomically recognized species or subspecies. On February 7, 1996, the FWS and NMFS published a joint policy to clarify the phrase “distinct population segment” for the purposes of listing, delisting and reclassifying species under the ESA (61 FR 4722). This policy identifies two criteria that must be met for a population segment to be considered a DPS under the ESA: (1) The discreteness of the population segment in relation to the remainder of the species or subspecies to which it belongs; and (2) the significance of the population segment to the species or subspecies to which it belongs.
New genetic information in combination with the tendency of sturgeon to exhibit high spawning site fidelity confirms the conclusions drawn during the previous 1-year “not warranted” finding (68 FR 4433; January 29, 2003) that the northern and southern populations of green sturgeon are “discrete” and “significant” as defined in the DPS policy. (For a complete discussion of the discreteness and significance of the U.S. population of green sturgeon see 68 FR at 4437).
Updated analyses of green sturgeon genetic structure were made available from University of California - Davis (J. Israel and B. May, pers. comm., 2004). These results incorporated a greater number of samples including new adult samples from the Umpqua River, new juvenile samples from the Sacramento River, and an increase in microsatellite DNA loci to nine over the six reported in the previous status review and discussed in Israel
New oceanic distribution and behavior information came from pop-off archival tags (7 fish), Oregon trawl logbook analysis, and acoustic tags (168 fish). These data indicated that green sturgeon generally make northward migrations, to points as far north as northwest Vancouver Island, Canada, upon returning to the ocean. During oceanic migrations, archival tagged fish occupied depths of 40-70 m and remained exclusively inside the 110 m contour. These results are confirmed by Oregon trawl logbook records (Erickson and Hightower, 2004). Fish marked in spawning areas (Rogue and Klamath Rivers and San Pablo Bay) and in mixed stock areas (Columbia River and Willapa Bay) with acoustic tags in 2002, 2003, and 2004 sustained migrations of 100 km per day. Several fish tagged in 2002 returned to the Rogue River in 2004, suggesting a minimal spawning periodicity of 2 years if it is assumed that these fish were ripe and returning to the River to spawn (S. Lindley and M. Moser, pers. comm., 2004).
We requested new historic and/or current information for particular river systems where historic and current spawning status is uncertain (e.g., Fraser River, Umpqua River, South Fork Trinity River, Eel River, Feather River, and San Joaquin River; 69 FR 34135). New information was received for the Chehalis, Umpqua, Rogue, and Eel Rivers within the Northern DPS and the Sacramento, Feather, and San Joaquin Rivers within the Southern DPS.
Washington Department of Fish and Wildlife (WDFW) investigated the Chehalis River as potential green sturgeon habitat, and while it appears to possess suitable habitat features for green and white sturgeon spawning, there has not been evidence of spawning occurring in this basin (WDFW, 2004). Data summarized from catch record cards suggest that a few green sturgeon were caught in sport fisheries as far upriver as 60 kilometers during July 2002, March 2003, and December 2003, but these may be misidentifications of white sturgeon, which are much more common within the basin. Sport anglers have reported small green sturgeon in Grays Harbor; however, these fish were most likely of a post-migratory size and therefore were not fish rearing in the estuary. Green and white sturgeon eggs and larvae have not been observed in the Chehalis River or Grays Harbor.
There are two confirmed records of green sturgeon captured above tidal influence in the Umpqua River (T. Rien, pers. comm., 2004). In July 2000, two juvenile green sturgeon (each approximately 10-cm long) were regurgitated from two smallmouth bass caught at river kilometer (rkm) 134 on the Umpqua River. The ODFW interviewed the local angling guide, and the one available regurgitated fish was positively identified as a green sturgeon. The other regurgitated sturgeon was not available to examine. In April 1979, a 1.8 m green sturgeon was caught at rkm 164 on the Umpqua River. A picture of the fish was published in the Roseburg News Review (May 3, 1979) and it was visually identified as a green sturgeon by ODFW. ODFW has sampled the Umpqua River in 2002, 2003, and 2004 using gill nets, beach seines, snorkeling, and underwater video, and their sampling efforts did not capture any green sturgeon above tidal influence in the Umpqua River.
A putative green juvenile sturgeon was captured at Big Butte Creek (rkm 254) near Lost Creek Dam on the Rogue River (R. Reisenbichler, pers. comm., 2004). This is unusual because it is very high in the system and above two major dams with fish ladders (Savage Rapids and Gold Ray) and several smaller dams.
Adult green sturgeon were sighted on the mainstem Eel River near Fort Seward, California (rkm 101) during snorkel surveys in 1995 and 1996 (S. Downie, pers. comm., 2004). Three sturgeon were sighted each year at a place locally known as “The Sturgeon Hole.” Two juvenile green sturgeon were captured in the Eel River estuary in 1994 by trawl (S. Cannata, pers. comm., 2004). The first one was 282mm FL and the second was 510mm. This is in addition to the previously reported capture of 26 juvenile green sturgeon near Fort Seward in 1967 and 1968 (Pluckett, 1976).
Recent habitat evaluations conducted in the upper Sacramento and Feather Rivers for salmonid recovery planning suggest that significant potential green sturgeon spawning habitat was made inaccessible or altered by dams (historical habitat characteristics, temperature, and geology summarized in Lindley
Green and white sturgeon adults have been observed periodically in small numbers in the Feather River (Beamesderfer
Small fisheries for sturgeon occur in spring on the San Joaquin River between Mossdale and the Merced River (Kohlhorst, 1976). Though sturgeon are known to migrate into the San Joaquin River, no efforts have been made to document sturgeon reproduction (FWS, 1995). In addition, data are not regularly collected at diversions on the San Joaquin River, and when sturgeon have been collected, species differentiation rarely occurred. Information exists through interviews with biologists, wardens, and anglers regarding the presence and potential spawning of white sturgeon on the San Joaquin River (FWS, 1995). Two juvenile white sturgeon caught at Woodbridge on the Mokelumne River (rkm 63) in 2003 are the first confirmation of white sturgeon reproduction in the San Joaquin River system (Beamesderfer
The coastwide bycatch of green sturgeon continues to be reduced over time as noted in the previous status review (Adams et al., 2002). Based on updated and corrected bycatch numbers, green sturgeon take has been reduced from a high of 9,065 in 1986 to 862 in 2001, the last year in the previous status review, to 512 in 2003. The greatest reductions in bycatch (direct and indirect) were for the commercial fisheries in the Northern
Information presented in the first status review (Adams
In earlier technical memos and
There is no evidence of historic or current spawning in the Fraser or Chehalis Rivers (D. Lane, pers. comm., 2004; WDFW, 2004). Based on the lack of data, we cannot conclude that there has been a loss of spawning habitat over time in these systems.
Known historic and current spawning, based primarily on the presence of juvenile green sturgeon, occurs in the Umpqua, Rogue, Klamath and Trinity Rivers, and, therefore, we conclude that populations have not been extirpated from these systems (T. Rein, pers. comm., 2004; Erickson
There is evidence to suggest that green sturgeon spawned in the South Fork Trinity River and continue to spawn there to some degree, based on the presence of adults in freshwater areas above tidal influence (CDFG, 1978; Moyle
The Eel River is the only system in the Northern DPS where the status of spawning since historic times is believed to have changed. Spawning is known to have occurred in the past based on the presence of juveniles (Plunkett, 1976), but recently, only adults have been present in the River (S. Downie, pers. comm., 2004) and one juvenile, whose natal stream origin is uncertain, was collected in the estuary. Despite Moyle
Known historic and current spawning, based on the presence of juvenile green sturgeon, occurs in the Sacramento River (Adams
Spawning is suspected to have occurred in the Feather River due to the presence of adults in the system (CDFG, 2002). Although there is no evidence of spawning in the past or now, the continued presence of adults in the system suggests that green sturgeon are trying to migrate into presumed spawning areas now blocked by the Oroville Dam. Therefore, we conclude that spawning habitat may have been lost in the Feather River, but we were not able to determine how much habitat or reproductive potential was lost.
There is no evidence of historic or current spawning in the San Joaquin River (Beamesderfer, 2004; Adams
Section 4 of the ESA (16 U.S.C. 1533) and regulations promulgated to implement the listing provisions of the ESA (50 CFR part 424) set forth the procedures for adding species to the Federal list of threatened and endangered species. Section 4 requires that listing determinations be based solely on the best scientific and commercial data available, without consideration of possible economic or other impacts of such determinations. A species may be determined to be endangered or threatened due to one or more of the five factors described in section 4(a)(1) of the ESA. We must determine if either DPS of green sturgeon is endangered or threatened because of any one or a combination of the following factors: (1) the present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or human-made factors affecting its continued existence.
Ocean and estuarine bycatch of green sturgeon in the white sturgeon and salmonid fisheries was considered a species-wide factor for decline since its impact could not be apportioned to one DPS or the other. Current total catch of green sturgeon has been reduced to 6 percent of its 1986 high value of 9,065 fish; this does not, however, necessarily represent a reduction in green sturgeon abundance. The recent reduction is due to newly imposed fishing regulations in Oregon and Washington. Commercial fisheries targeting sturgeon have not been allowed in the Columbia River or Willapa Bay since 2001, and recreational fishing remains negligible (WDFW, 2004). Yurok and Hoopa tribal catch has remained relatively constant during the entire time series. The reduction in catch through protective
A summary of DPS-specific factors for decline is presented below (Tables 1 and 2). These factors were only considered for those river systems with known or suspected historical or current spawning activity.
The potential factors for decline in the Northern DPS are reduced flows, changed flow regimes, increased temperatures, and reduced oxygen concentrations, principally in the Klamath-Trinity and Eel River systems (Table 1). The impact of these factors is uncertain. This DPS also has the only major in-river fishery for green sturgeon (Yurok and Hoopa tribal fisheries in the Klamath-Trinity River system), the effects of which are uncertain, but catch data show no obvious signs of decline. As mentioned in the previous section, species-wide reduction in bycatch fishing mortality through protective management measures reduces the threat of overfishing in the Northern DPS. No risks due to disease, predation, or inadequacy of existing regulatory mechanisms were identified. The Northern DPS has two known major spawning populations (e.g., the Klamath-Trinity River system and the Rogue River) that are not close to one another geographically, thus spreading risks of extinction over more than one spawning area. Spawning also appears to occur infrequently in the Umpqua River. This gives the Northern DPS some additional protection.
The principal factor for decline for this DPS comes from the reduction of green sturgeon spawning area to a limited area of the Sacramento River (Table 2). Keswick Dam provides an impassible barrier blocking green sturgeon access to what were likely historic spawning grounds upstream (FWS, 1995). A substantial amount of habitat in the Feather River above Oroville Dam also was lost, and threats to green sturgeon on the Feather River are similar to those faced in the Sacramento River (NMFS, 2004). The BRT concluded that a viable spawning population of green sturgeon no longer exists in the Feather River and was likely lost due to the habitat blockage as a result of Oroville Dam and from thermal barriers associated with the Thermalito Afterbay Facility (Table 2). Any observations of adult green sturgeon likely represent individuals that were stranded as a result of these barriers.
Potential adult migration barriers to green sturgeon include the Red Bluff Diversion Dam (RBDD), Sacramento Deep Water Ship Channel locks, Fremont Weir, Sutter Bypass, and the Delta Cross Channel Gates on the Sacramento River, and Shanghai Bench and Sunset Pumps on the Feather River. The threat of screened and unscreened agricultural, municipal, and industrial water diversions in the Sacramento River and Delta to green sturgeon are largely unknown as juvenile sturgeon are often not identified, and current California Department of Fish and Game (CDFG) and NMFS screen criteria do not address sturgeon. Based on the temporal occurrence of juvenile green sturgeon and the high density of water diversion structures along rearing and migration routes, we find the potential threat of these diversions to be serious and in need of study (Table 2 NMFS, 2005).
CDFG (1992) and FWS (1995) found a strong correlation between mean daily freshwater outflow (April to July) and white sturgeon year class strength in the Sacramento-San Joaquin Estuary (these studies primarily involve the more abundant white sturgeon; however, the threats to green sturgeon are thought to be similar), indicating that insufficient flow rates are likely to pose a significant threat to green sturgeon (Table 2). This association of year class strength with outflow is also found in other anadromous fishes inhabiting the Estuary, such as striped bass, Chinook salmon, American shad, and longfin smelt (Stevens and Miller, 1983). Mean April-May flow rates of 566 cubic meters per second appear to be the minimum required for the production of good year class strength based on approximately 20 years of sturgeon salvage data at the Skinner Fish Facility (CDFG, 2002). According to this criterion, low flow rates occurred slightly more than 50 percent of the time during the years spanning 1968-1987 (CDFG, 2002). The FWS (1995) used water year types, based on an index developed for the Sacramento Basin (California Department of Water Resources, 2004), to suggest that low flow conditions occurred 53 percent of the time during the years spanning 1944-2004. It is postulated that low flow rates could dampen survival by hampering the dispersal of larvae to areas of greater food availability, hampering the dispersal of larvae to all available habitat, delaying the transportation of larvae downstream of water diversions in the Delta, or decreasing nutrient supply to the nursery, thus stifling productivity (CDFG, 1992). There are no current indications that flow rates will increase over time.
High temperatures no longer seem to be the problem that they once were with the installation of the Shasta Dam temperature control device in 1997, although Shasta Dam has a limited storage capacity and cold water reserves could be depleted in long droughts (Table 2). Temperatures at RBDD have not been higher than 16° C since 1995 (California Data Exchange Center) and are within the green sturgeon egg and larvae optimum for growth and survival of 15° to 19° C (Mayfield and Cech, 2004). However, green sturgeon reproduction before 1995 may well have been adversely affected by temperature and these earlier high temperatures may have caused population reductions that would still affect the overall population size and age-structure (Table 2). Water temperatures on Feather River downstream of the Thermalito Afterbay outlet are considerably higher than temperatures in the low-flow channel (FWS, 1995). It is likely that high water temperatures (greater than 17.2° C) may deleteriously affect sturgeon egg and larval development, especially for late-spawning fish in drier water years (FWS, 1995). CDFG (2002) also indicated water temperatures may be inadequate for spawning and egg incubation in the Feather River during many years as the result of releases of warmed water from Thermalito Afterbay. CDFG believed this may be one reason neither green nor white sturgeon are found in the river in low-flow years. It is not expected that water temperatures will become more favorable in the near future (CDFG, 2002) and thus elevated water temperature continues to be a threat.
Sturgeon have high vulnerability to fisheries, and the trophy status of large white sturgeon makes these fishes a high priority for enforcement to protect against poaching (Table 2; CDFG, 2002). Green sturgeon are caught incidentally in these white sturgeon fisheries.
Non-native species are an ongoing problem in the Sacramento-San Joaquin River and Delta systems (Table 2; CDFG, 2002). One risk for green sturgeon associated with the introduction of non-native species involves the replacement of relatively uncontaminated food items with those that may be contaminated. For example, the non-native overbite clam,
Contamination of the Sacramento River increased substantially in the mid-1970s when application of rice pesticides increased (FWS, 1995). Estimated toxic concentrations for the Sacramento River during 1970-1988 may have deleteriously affected striped bass larvae (Bailey, 1994). White sturgeon may also accumulate PCBs and selenium (White
The previous status review (Adams
The Fraser River in Canada currently has a catch and release fishery for sturgeon, but the number of green sturgeon captured is extremely small. A tagging study in 1992-1993 tagged 2300 sturgeon and only one was a green sturgeon (D. Lane, pers. comm., 2004). Green sturgeon occur off the West Coast of Vancouver Island where they are taken in the trawl fishery. These fish are thought to be from spawning areas in the United States, and this idea is supported by the recent acoustic and pop-off archival tagging. WDFW has investigated the possibility of green sturgeon spawning in the Chehalis River as it appears to provide suitable habitat features to support spawning. However, no evidence of spawning in this system has occurred to date. Currently, there is limited fishing in Grays Harbor, but no evidence of spawning has been found (WDFW, 2004).
Spawning does appear to take place in the Umpqua River, but is probably rare. Juvenile green sturgeon were identified in the system in 2000. Spawning in the Umpqua River apparently is not common since substantial sampling efforts in 2002, 2003, and 2004 failed to find any evidence of green sturgeon spawning.
The presence of green sturgeon spawning in the Rogue River has been only recently discovered. The river is less manipulated and habitat seems to be of better quality than in other green sturgeon spawning rivers. Blockages to migration of anadromous fish are likely to be upriver of the historical extent of green sturgeon spawning habitat and, therefore, do not seem to be limiting; habitat seems to be roughly what it was historically. Other anadromous salmonid fishes are generally doing well in the Rogue River (Weitkamp
The Klamath River has the largest green sturgeon spawning population. Spawning still occurs upstream to the historical limit of its habitat range (Ishi Pishi Falls). Out-migrant juvenile green sturgeon are captured each year in screw traps at Big Bar (Schieff
There are few available data regarding the status of green sturgeon in the Trinity River system. The Hoopa Tribe has a small in-river fishery which takes fewer than 30 adult green sturgeon each year. Juvenile out-migrant green sturgeon are captured in most years in small numbers at Willow Creek (Schieff
The Eel River is the southern-most known spawning area in the Northern DPS. Moyle
The evaluation of extinction risk over a “significant portion of its range” is difficult for this DPS because of the lack of historical data about green sturgeon spawning areas. As explained above, in earlier technical memos and
The BRT was unable to come to firm consensus on what should be considered “a significant portion” for this DPS, however, they generally agreed that “a significant portion” of the DPS's range would include either the Klamath or Rogue Rivers, and that the South Fork Trinity and Eel Rivers do not represent a significant portion of the DPS's range. The BRT's opinion regarding “significant portion of its range” is supported by drawing analogies from salmonid habitat use and estimated abundance in the Klamath, Rogue, South Fork Trinity and Eel Rivers (Lindley
Based on the input provided by the BRT, we conclude that the Northern DPS of green sturgeon is not in danger of extinction, nor likely to become endangered in the foreseeable future, in all or a significant portion of its range. While a significant portion of the DPS' range would include either the Klamath or the Rogue Rivers, neither of these populations is regarded as being at risk of extirpation now or in the foreseeable future. The BRT was not convinced that green sturgeon were extirpated from the South Fork Trinity or Eel Rivers, even though it is likely that the Eel River population, in particular, has suffered a severe reduction since historic times. Reference data from salmonid habitat assessments and tribal fisheries data suggest that even though green sturgeon populations in the Eel and South Fork Trinity Rivers are likely low, these rivers do not represent a significant portion of the DPS' range. The majority of the BRT felt that the presence of two
The BRT concluded that the Sacramento River contains the only known green sturgeon spawning population in this DPS. There are no updated population trends data since the last status review. The BRT concluded that there was almost certainly a substantial loss of spawning habitat behind Keswick and Shasta dams (FWS, 1995b, historical habitat data summarized in Lindley
Juvenile entrainment data provide an indication of how abundance has changed over time (1968-present). For the State facility (John Skinner Fish Facility; 1968-2001), the estimated average number of green sturgeon taken per year prior to 1986 was 732; from 1986 on, the average number was 47. For the Federal facility (Tracy Fish Collection Facility; 1980-2001), the average number prior to 1986 was 889; from 1986 on, the average was 32. The significant reduction in numbers is consistent across the State and Federal facilities and is also consistent with significant reductions in estimated white sturgeon take within the same time periods (NMFS, 2005). In addition, evidence indicates export levels at both facilities have increased substantially, particularly at the State facility since the 1970s and 1980s (as exhibited by yearly acre-feet exported from Federal and State facilities, NMFS, 2005). Though there are many assumptions associated with fish salvage estimates at these facilities (i.e., estimates are expanded catches from brief sampling periods; CDFG, 2002), this information may be the best available data in determining the population trends of the Southern DPS.
The BRT concluded that an effective population of spawning green sturgeon does not exist in the Feather River. Although there is no evidence of spawning in the Feather River either in the past or now, the continued presence of adults in the system suggests that green sturgeon are trying to migrate ito presumed spawning areas now blocked by Oroville Dam, suggesting in turn that spawning habitat on the Fraser River may bave been lost. A substantial amount of habitat in the Feather River was lost with the construction of Oroville Dam (constructed in 1961) and from thermal barriers at the Thermalito Afterbay facility (CDFG, 2002). FWS (1995b) stated that “Evidence also suggests that [white] sturgeon reproduction occurs in both the Feather and Bear rivers.” Again, the BRT assumed that a similar suggestion could be made for green sturgeon in the face of the paucity of data. Sturgeon (including some documented green sturgeon) still regularly occur in the Bear and Yuba Rivers (CDFG, 2002; Beamesderfer
Though the BRT concluded that there was not sufficient information to establish whether the San Joaquin River system once supported a viable green sturgeon population, we see no reason to exclude the San Joaquin River system as a possibly occupied watershed in the past based on similar conclusions reached for Chinook salmon habitat assessments in the Sacramento and Feather Rivers. While some authors indicate that there is no evidence of green sturgeon occurrence or spawning in the San Joaquin River (Beamesderfer
The majority of the BRT concluded that the Southern DPS is likely to become endangered in the foreseeable future throughout all of its range. The BRT felt that the blockage of green sturgeon spawning from what were historic spawning areas above Shasta Dam (although it is unclear whether these were separate populations) and the accompanying decrease in spawning area with the loss of a potential spawning area in the Feather River make green sturgeon in the Southern DPS likely to become endangered within the foreseeable future. We believe that the loss of potential spawning habitat in the San Joaquin River system also may have contributed to the overall decline of the Southern DPS. The majority of the BRT also felt that the concentration of spawning adults in the Sacramento River places this DPS at even greater risk of extinction. No BRT members felt that the DPS was at imminent risk of extinction.
Section 4(b)(1)(A) of the ESA requires the Secretary of Commerce to make listing determinations solely on the basis of the best scientific and commercial data available after taking into account efforts being made to protect a species. Therefore, in making its listing determinations, we first assess a DPS's level of extinction risk and identify factors that have led to its decline. We then assess existing efforts being made to protect the species to determine if those measures ameliorate the risks faced by the DPS.
In judging the efficacy of existing protective efforts, we rely on the joint NMFS-FWS “Policy for Evaluation of Conservation Efforts When Making Listing Decisions” (“PECE;” 68 FR 15100; March 28, 2003). PECE provides direction for the consideration of protective efforts identified in conservation agreements, conservation plans, management plans, or similar documents (developed by Federal agencies, state and local governments, Tribal governments, businesses, organizations, and individuals) that have not yet been implemented, or have been implemented but have not yet demonstrated effectiveness. The policy articulates several criteria for evaluating the certainty of implementation and effectiveness of protective efforts to aid in determining whether a species should be listed as threatened or endangered. Evaluations of the certainty an effort will be implemented include whether: the necessary resources (e.g., funding and staffing) are available; the requisite agreements have been formalized such that the necessary authority and regulatory mechanisms are in place; there is a schedule for completion and evaluation of the stated objectives; and (for voluntary efforts) the necessary incentives are in place to ensure adequate participation. The evaluation of the certainty of an effort's effectiveness is made on the basis of whether the effort or plan: establishes specific conservation objectives; identifies the necessary steps to reduce threats or factors for decline; includes quantifiable performance measures for the monitoring of compliance and effectiveness; incorporates the principles of adaptive management; and is likely to improve the species' viability at the time of the listing determination.
PECE also notes several important caveats. Satisfaction of the above mentioned criteria for implementation and effectiveness establishes a given protective effort as a candidate for consideration, but does not mean that an effort will ultimately change the risk assessment. The policy stresses that just as listing determinations must be based on the viability of the species at the time of review, so they must be based on the state of protective efforts at the time of the listing determination. PECE does not provide explicit guidance on how protective efforts affecting only a portion of a species' range may affect a listing determination, other than to say that such efforts will be evaluated in the context of other efforts being made and the species' overall viability. There are circumstances where threats are so imminent, widespread, and/or complex that it may be impossible for any agreement or plan to include sufficient efforts to result in a determination that listing is not warranted.
Conservation measures that may apply to listed species include conservation measures implemented by tribes, states, foreign nations, local governments, and private organizations. Also, Federal, tribal, state, and foreign nations' recovery actions (16 U.S.C. 1533(f)), Federal consultation requirements (16 U.S.C. 1536), and prohibitions on taking (16 U.S.C. 1538) constitute conservation measures. In addition, recognition through Federal government or state listing promotes public awareness and conservation actions by Federal, state, tribal governments, foreign nations, private organizations, and individuals.
Recent management strategies in Oregon and Washington have considerably reduced the catch of green sturgeon. There are no targeted commercial fisheries on green sturgeon, and recreational fishing remains negligible. Commercial by-catch of green sturgeon occurs predominantly during the early fall salmon and white sturgeon fisheries in the lower Columbia River, when the green sturgeon have migrated into the estuary and lower river mainstem. Fisheries are timed to avoid coinciding with peak periods of green sturgeon presence. Since 2002, Oregon and Washington have adopted daily landing limits for sturgeon during fall Columbia River commercial salmon seasons. This management action has resulted in a significant decrease in green sturgeon catch due to the higher value (price per pound) of white sturgeon on the commercial market. Harvesters now typically release all green sturgeon (alive) to fill their weekly or daily landing limit with the more valuable white sturgeon. Additionally, this management approach has allowed the commercial fishery to access its allocation of white sturgeon prior to periods of peak green sturgeon presence and without any fisheries targeting sturgeon, further minimizing green sturgeon by-catch.
Protective efforts on the Klamath and Trinity Rivers began with take limits and maximum size ranges through the late 1970s, and between 1978 and 1993 seasonal limits were imposed to prohibit the take of sturgeon in the Klamath River upstream of and including the Trinity River. All sturgeon fishing has been prohibited in the Klamath-Trinity system since 1993. Sturgeon fishing also has been prohibited since 1993 in all waters of the Eel River from the mouth to rkm 153 including all waters of the South Fork Eel River downstream of Benbow Dam (CDFG, 2002). Sturgeon fishing in rivers and bays in Del Norte and Humboldt Counties, including the Smith River, Humboldt and Arcata Bays, and all tidal waters, has been prohibited since 1993. General angling regulations apply to sturgeon angling from Mendocino County south (one fish per day between 117 and 183cm TL).
Both white and green sturgeon are protected by the same fishing regulations in the Sacramento-San Joaquin system. No commercial take is permitted and angling take is restricted to one fish per day between 117 and 183cm TL. An additional closure in central San Francisco Bay occurs between January 1 and March 15, coinciding with the herring spawning season to protect sturgeon feeding on herring eggs (CDFG, 2002). Active sturgeon enforcement is often employed in areas where sturgeon are concentrated and particularly vulnerable to the fishery.
There is no commercial fishery for green sturgeon in Canada, although the species is taken as by-catch in white sturgeon and salmon fisheries.
In the United States, the Central Valley Project Improvement Act (CVPIA) is a Federal act directing the Secretary of the Interior to amend previous authorizations of California's Central Valley Project to include fish and wildlife protection, restoration, and mitigation as project purposes having equal priority with irrigation and domestic use, and fish and wildlife enhancement as a project purpose equal to power generation. As a result of the CVPIA enacted in 1992, the FWS and U.S. Bureau of Reclamation have led an effort to implement a significant number of activities across the Central Valley including projects such as: river restoration; land purchases; fish screen projects; water acquisitions for the
The California Bay-Delta Program (CALFED) is a cooperative effort of more than 20 State and Federal agencies designed to improve water quality and reliability of California's water supply while recovering the Central Valley ecosystem. The CALFED program contains four key objectives which include water quality, ecosystem quality, water supply and levee system integrity. Many notable beneficial actions have originated and been funded by the CALFED program including such projects as floodplain and instream restoration, riparian habitat protection, fish screening and passage projects, research regarding non-native invasive species and contaminants, restoration methods, and watershed stewardship and education and outreach programs. Prior
Information received from CALFED regarding potential projects that could be regarded as conservation measures for green sturgeon indicated a total of 118 projects of various types and levels of progress funded between 1995 and 2004. Projects primarily consisted of fish screen evaluation and construction projects, restoration evaluation and enhancement activities, contaminations studies, and dissolved oxygen investigations related to the San Joaquin River Deep Water Ship Channel. Two evaluation projects specifically addressed green sturgeon while the remaining projects primarily address anadromous fish in general, particularly listed salmonids. The new green sturgeon information from research will be used to enhance our understanding of the risk factors affecting the species, thereby improving our ability to develop effective management measures. However, at present they do not directly help to alleviate threats that this species faces in the wild. All ongoing fish screen and passage studies are designed primarily to meet the minimum qualifications outlined by the NMFS and CDFG fish screen criteria. Though these improvements will likely benefit salmonids, there is no evidence showing that these measures will decrease the likelihood of green sturgeon mortality. While one of CALFED's goals is to recover a number of at-risk species (including green sturgeon) and the program has and continues to provide funding for a variety of laboratory-based research projects, there are no specific actions aimed at alleviating the primary risks that threaten the continued existence of green sturgeon in the wild.
Other potential conservation measures such as the opening of the RBDD gates have helped green sturgeon passage in the Sacramento River during the early part of their spawning season, but it is not known how effective this measure has been. In addition, fish ladders in place are probably too small for green sturgeon to negotiate during the latter part of the spawning season when the RBDD gates are closed (FWS, 1995b). The Glenn-Colusa Irrigation District plans to help reduce fish loss and enhance long-term fish passage, but these measures are not yet underway. Fish salvaging efforts at the Tracy Fish Collection Facility and the Skinner Delta Fish Protective Facility in the South Delta have been operating for decades, but it is unknown whether efforts to relocate adults have resulted in restoration of spawning potential and whether the salvage of juveniles is effective.
As evaluated pursuant to PECE, the above described protective efforts do not as yet, individually or collectively, provide sufficient certainty of implementation and effectiveness to counter the extinction risk assessment conclusion that the Southern DPS is likely to become an endangered species in the foreseeable future throughout its range.
Green sturgeon are listed as Species of Special Concern under Canada's Species at Risk Act (SARA). Under SARA a Species of Special Concern is a wildlife species that may become a threatened or an endangered species because of a combination of biological characteristics and identified threats. There are no specific conservation measures directed at green sturgeon in Canada to alleviate the recognized threats of habitat degradation and alteration.
Section 4(b)(1) of the ESA requires that the listing determination be based solely on the best scientific and commercial data available, after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any state or foreign nation to protect and conserve the species. We have reviewed the petition, the reports of the BRT (NMFS, 2002, 2004), co-manager comments, and other available published and unpublished information, and we have consulted with species experts and other individuals familiar with green sturgeon. On the basis of the best available scientific and commercial information, the southern and northern populations of green sturgeon meet the discreteness and significance criteria for distinct DPSs.
Informed by the BRT's risk assessment, we conclude that the Northern DPS is not presently in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. Accordingly, the DPS does not warrant listing under the ESA at this time. Our review indicates that: (1) there is no evidence for reductions in spawning habitat in the South Fork Trinity River; and (2) the Eel River population may have experienced declines and loss of spawning habitat. Nevertheless, the BRT concluded that neither the South Fork Trinity nor the Eel River constitute a significant portion of the DPS' range because: (1) analogies drawn from salmonid research suggest that the South Fork Trinity and Eel Rivers do not support large salmonid populations; (2) habitat in the Eel River is of poorer quality compared to that of the Klamath and Rogue Rivers; and (3) tribal fisheries data do not suggest that the South Fork Trinity or Eel River supported significant numbers of green sturgeon in the past. Due to the poor availability of data and attendant uncertainties
We propose to find that the Southern DPS is not presently in danger of extinction throughout all of its range. Fishing regulations in place in California, the implementation of studies aimed at increasing our understanding of the ecological requirements of green sturgeon in the wild, and efforts to ameliorate threats to salmonids in the wild, thus conferring some possible benefits to green sturgeon, indicate that the Southern DPS is not presently in danger of extinction throughout all of its range. We also propose to find that the Southern DPS is not in danger of extinction throughout a significant portion of its range. We feel that spawning habitat may have been lost in the Sacramento and Feather Rivers, but due to a paucity of data, we are unable to determine the geographic extent and demographic consequences of this loss. We have no evidence of historic or current spawning in the San Joaquin River and therefore we have no evidence of lost spawning habitat.
Based on our evaluation of the best available scientific information and the ongoing state and Federal conservation efforts, we propose to find that the Southern DPS is likely to become endangered in the foreseeable future throughout all of its range and should therefore be listed as threatened. This proposal is based on the reduction of potential spawning habitat, the threats to the single remaining spawning population remaining severe and unlikely to be sufficiently alleviated by conservation measures currently in place, and the downward trend of sturgeon salvage estimates from State (1968-2003) and Federal (1980-2003) facilities.
Section 9 of the ESA prohibits certain activities that directly or indirectly affect endangered species. In the case of threatened species, ESA section 4(d) authorizes the Secretary to issue regulations he considers necessary and appropriate for the conservation of the species. We have flexibility under section 4(d) to tailor protective regulations based on the contents of available conservation measures. The 4(d) protective regulations may prohibit, with respect to threatened species, some or all of the acts which section 9(a) of the ESA prohibits with respect to endangered species. These 9(a) prohibitions and 4(d) regulations apply to all individuals, organizations, and agencies subject to U.S. jurisdiction. We will evaluate protective regulations pursuant to section 4(d) for the Southern green sturgeon DPS and propose any thought to be necessary and appropriate for conservation of the species in a forthcoming notice of proposed rulemaking that will be published in the
Section 7(a)(2) of the ESA and NMFS/FWS regulations require Federal agencies to confer with us on actions likely to jeopardize the continued existence of species proposed for listing or result in the destruction or adverse modification of proposed critical habitat. If a proposed species is ultimately listed, Federal agencies must consult on any action they authorize, fund, or carry out if those actions may affect the listed species or its critical habitat. Examples of Federal actions that may affect the Southern green sturgeon DPS include: water diversion for human use; point and non-point source discharge of persistent contaminants; contaminated waste disposal; water quality standards; and fishery management practices.
On July 1, 1994, we and FWS published a series of policies regarding listings under the ESA, including a policy for peer review of scientific data (59 FR 34270). The intent of the peer review policy is to ensure that listings are based on the best scientific and commercial data available. Prior to a final listing, we will solicit the expert opinions of three qualified specialists, concurrent with the public comment period. Independent specialists will be selected from the academic and scientific community, Federal and state agencies, and the private sector.
Critical habitat is defined in section 3 of the ESA as: “(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species” (16 U.S.C. 1532(5)(A)). “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the ESA is no longer necessary (16 U.S.C. 1532(3)). Section 4(a)(3)(A) of the ESA requires that, to the maximum extent prudent and determinable, critical habitat be designated concurrently with the listing of a species (16 U.S.C. 1533(a)(3)(A)(i)). Designations of critical habitat must be based on the best scientific data available and must take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat. Once critical habitat is designated, section 7 of the ESA requires Federal agencies to ensure that they do not fund, authorize or carry out any actions that are likely to destroy or adversely modify that habitat. This requirement is in addition to the section 7 requirement that Federal agencies ensure that their actions do not jeopardize the continued existence of listed species. We are currently compiling information to prepare a critical habitat proposal for the Southern DPS. In a previous
We recognize that there are serious limits to the quality of information available, and, therefore, we exercised our best professional judgment in developing this proposal to list the Southern DPS. To ensure that the final action resulting from this proposal will be as accurate and effective as possible, we are soliciting comments and suggestions from the public, other governmental agencies, the Government of Canada, the scientific community, industry, environmental groups, and any other interested parties. Comments are encouraged on this proposal (See
We are also requesting quantitative evaluations describing the quality and extent of freshwater and marine habitats for juvenile and adult green sturgeon as well as information on areas that may qualify as critical habitat in California for the proposed Southern DPS. Specific areas that include the physical and biological features essential to the recovery of the DPS should be identified. We recognize that there are areas within the proposed boundaries of the Southern DPS that historically constituted green sturgeon habitat, but may not be currently occupied by green sturgeon. We are requesting information about these currently unoccupied areas to help us determine whether these areas are essential to the recovery of the species or excluded from designation. For areas potentially qualifying as critical habitat, we are requesting information describing: (1) the activities that affect the area or could be affected by the designation, and (2) the economic costs and benefits of additional requirements of management measures likely to result from the designation. The economic cost to be considered in the critical habitat designation under the ESA is the probable economic impact “of the [critical habitat] designation upon proposed or ongoing activities” (50 CFR 424.19). Economic effects attributable to listing include actions resulting from section 7 consultations under the ESA to avoid jeopardy to the species. Comments concerning economic impacts should attempt to distinguish the costs of listing from the incremental costs that can be directly attributed to the designation of specific areas as critical habitat.
We will review all public comments and any additional information regarding the status of, and critical habitat for, the Southern green sturgeon DPS in developing a final listing determination as well as proposed critical habitat and, potentially, section 4(d) regulations.
Public hearings will be held in several locations within the range of the proposed Southern DPS; details regarding locations, dates, and times will be published in a forthcoming
A complete list of all references cited herein is available upon request (see
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981), we have concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act. (See NOAA Administrative Order 216 6.)
As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this rule is exempt from review under Executive Order 12866. This proposed rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.
In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual State and Federal interest, this proposed rule will be given to the relevant state agencies in each state in which the species is believed to occur, who will be invited to comment. We have conferred with the States of Washington, Oregon and California in the course of assessing the status of the Southern DPS, and considered, among other things, Federal, state and local conservation measures. As we proceed, we intend to continue engaging in informal and formal contacts with the States, and other affected local or regional entities, giving careful consideration to all written and oral comments received. We also intend to consult with appropriate elected officials in the establishment of a final rule.
Endangered and threatened species, Exports, Imports, Transportation.
For the reasons set out in the preamble, 50 CFR part 223 is proposed to be amended as follows:
1. The authority citation for part 223 continues to read as follows:
16 U.S.C. 1531 1543; subpart B, § 223.12 also issued under 16 U.S.C. 1361
2. In § 223.102, amend paragraph (a) by adding and reserving paragraph (a)(23) and paragraph (a)(24) and adding a new paragraph (a)(25) to read as follows:
(a) * * *
(25) North American green sturgeon-southern DPS
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability; request for comments.
NMFS announces the availability of Amendment 24 to the Fishery Management Plan (FMP) for the Reef Fish Resources of the Gulf of Mexico (Amendment 24) prepared by the Gulf of Mexico Fishery Management Council (Council). Amendment 24 would establish a limited access system for the Gulf of Mexico commercial reef fish fishery. The intended effect of Amendment 24 is to support the Council's efforts to achieve optimum yield in the fishery, and provide social and economic benefits associated with maintaining stability in the fishery.
Written comments must be received no later than 5 p.m., eastern time, on June 6, 2005.
You may submit comments by any of the following methods:
• E-mail:
• Federal e-Rulemaking Portal:
• Mail: Peter Hood, Southeast Regional Office, NMFS, 263 13
• Fax: 727-824-5308, Attention: Peter Hood.
Copies of Amendment 24, which includes an Environmental Assessment, a Regulatory Impact Review, and an Initial Regulatory Flexibility Analysis, are available from the Gulf of Mexico Fishery Management Council, 3018 North U.S. Highway 301, Suite 1000, Tampa, FL 33619-2272; email:
Peter Hood, 727-824-5305; fax 727-824-5308; e-mail:
A moratorium on the issuance of new commercial reef fish permits was established in 1992 under Amendment 4 to the Reef Fish Fishery Management Plan (April 8, 1992; 57 FR 11914). The moratorium was designed to provide a stable environment in the fishery for the evaluation and development of a more comprehensive, controlled access system for the entire commercial reef fish fishery. The moratorium was subsequently extended through 1995 (Amendment 9) (August 2, 1994; 59 FR 39301) and to December 31, 2000 (Amendment 11) (December 15, 1995; 60 FR 674350), to provide additional time for consideration of implementing a limited access system in the reef fish fishery. During this period, the Council developed an individual transferable quota (ITQ) system for red snapper (Amendment 8); however, before it could be implemented, Congress prohibited the implementation of ITQ systems until October 1, 2000. Subsequently, the Council developed and NMFS implemented a license limitation system for red snapper (Amendment 15) (62 FR 67714). Amendment 17 was implemented by NMFS on August 10, 2000 (65 FR 41016), and extended the commercial reef fish permit moratorium for another 5 years, from its previous expiration date of December 31, 2000 to December 31, 2005, or until replaced with a license limitation, limited access, and/or individual fishing quota or individual transferable quota system.
Amendment 24, if implemented, would establish a limited access system for the commercial fishery for reef fish. The intended effect would be to prevent increases in effort, to possibly reduce the number of permittees in the reef fish fishery, and to stabilize the economic performance of current participants, while protecting reef fish species from overfishing. The existing restricted number of fishery participants in the Gulf of Mexico has demonstrated the capability of harvesting their total allowable catch well in advance of the end of the various fishing seasons. Allowing the fishery to revert to open access would probably hasten these closures. The proposed limited access system would maintain the existing restricted access to the fishery for an indefinite period, with the intent to provide continued social and economic stability to the reef fish fishery.
A proposed rule that would implement the measure outlined in Amendment 24 has been received from the Council. In accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), NMFS is evaluating the Council's proposed rule to determine whether it is consistent with the FMP, the Magnuson-Stevens Act, and other applicable law. If that determination is affirmative, NMFS will publish the proposed rule in the
Comments received by June 6, 2005, whether specifically directed to the Amendment 24 or the proposed rule, will be considered by NMFS in its decision to approve, disapprove, or partially approve Amendment 24. Comments received after that date will not be considered by NMFS in this decision. All comments received by NMFS on the amendment or the proposed rule during their respective comment periods will be addressed in a final rule.
16 U.S.C. 1801
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Pub. L. 104-13. Comments regarding: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Notice.
This notice lists the newspapers that will be used by the ranger districts, forests and regional office of the Intermountain Region to publish legal notices required under 36 CFR parts 215, 217, and 218. The intended effect of this action is to inform interested members of the public which newspapers the Forest Service will use to publish notices of proposed actions and notices of decision. This will provide the public with constructive notice of Forest Service proposals and decisions, provide information on the procedures to comment or appeal, and establish the date that the Forest Service will use to determine if comments or appeals were timely.
Publication of legal notices in the listed newspapers will begin on or after April 1, 2005. The list of newspapers will remain in effect until October 1, 2005, when another notice will be published in the
Priscilla McLain, Regional Appeals Coordinator, Intermountain Region, 324 25th Street, Ogden, UT 84401, and phone (801) 625-5146.
The administrative procedures at 36 CFR parts 215, 217, and 218 require the Forest Service to publish notices in a newspaper of general circulation. The content of the notices is specified in 36 CFR parts 215, 217 and 218. In general, the notices will identify: The decision or project, by title or subject matter; the name and title of the official making the decision; how to obtain additional
Forest Service, USDA.
Revised Notice: intent to prepare an environmental impact statement (EIS).
This is a revision of a Notice of Intent originally published in the
The original Notice of August 4, 2004 for the “Forest-Wide Integrated Weed Management” project stated the Forest Service would prepare an environmental impact statement to address noxious weeds on a maximum of 15,000 acres per year on the Lolo National Forest, using aerial and ground application of herbicides, biological and manual control methods.
The Notice of August 31, 2004 for the “Pattee Canyon Weed Management Project” stated the Forest Service would prepare an environmental impact statement to control invasive weeds on approximately 2,500 acres of land near Missoula, Montana, using aerial and ground applications of herbicides, biological control agents, and revegetation.
This revision withdraws the “Pattee Canyon Weed Management Project” as a separate project, and combines it into the “Forest-Wide Integrated Weed Management” project. The reason for the change is to make the analysis more efficient, because the “Pattee Canyon Weed Management Project” area is wholly within the “Forest-Wide Integrated Weed Management” project area, because the proposed weed management methods and aims are the same for both projects, and because undertaking two analyses would be less efficient.
The issues identified in the August 31, 2004
The August 4, 2004
The August 4, 2004 Notice is further amended to also include the following additional issues:
1. Recognizing that invasive weeds are spreading rapidly in Western Montana, what effect will invasive weeds have on wildlife and native plant communities?
2. What potential adverse effects might herbicides have on wildlife, fish and water quality?
Comments concerning this revision should be received in writing within 30 days of this Notice's publication. Persons who have already commented on either the original Notices of Intent do not need to resubmit those comments.
The responsible official is Deborah L. R. Austin, Forest Supervisor, Lolo National Forest, Supervisor's Office, Building 24, Fort Missoula; Missoula, MT 59804. Phone (406) 329-3797.
Andy Kulla, Resource Assistant, Missoula Ranger District, at (406) 329-3962. Please direct written comments to him at Missoula Ranger District; Building 24A, Fort Missoula; Missoula, MT 59804.
Further information about the proposal can be found in the original Notice of Intent. Another formal opportunity to comment will be provided following completion of the Draft Environmental Impact Statement (DEIS). The DEIS will be available for public review by the fall of 2005. The Final Environmental Impact Statement (FEIS) will be filed by the fall of 2006. The responsible official will make a decision on this proposal after considering comments and responses, environmental consequences discussed in the FEIS and applicable laws, regulations and policies. The decision and reasons for the decision will be documented in a Record of Decision.
Forest Service, USDA.
Notice of meeting.
The Intergovernmental Advisory Committee (IAC), Northwest Forest Plan (NWFP), has scheduled a meeting on April 21, 2005 from 8 a.m. to 12 noon at the Washington Conference Room, Jantzen Beach DoubleTree Hotel, 909 N Hayden Island Drive, Portland, OR 97217, 503-283-4466. The purpose of the meeting is to review key findings and trends from the April 19-20, 2005 Science and the Northwest Forest Plan, Knowledge Gained Over a Decade conference (see
The meeting is open to the public and fully accessible for people with disabilities. A 15-minute time slot is reserved for public comments at 8:30 a.m. Interpreters are available upon request at least 10 days prior to the meeting. Written comments may be submitted for the meeting record. Interested persons are encouraged to attend.
Questions regarding this meeting may be directed to Kath Collier, Management Analyst, Regional Ecosystem Office, 333 SW., First Avenue, P.O. Box 3623, Portland, OR 97208 (telephone: 503-808-2165).
Forest Service, USDA.
Notice of meeting.
The Land Between The Lakes Advisory Board will hold a meeting on Thursday, April 28, 2005. Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App.2.
The meeting will be held on Thursday, April 28, 2005, 8:30 a.m. to 3:30 p.m., c.s.t.
The meeting will be held at Kentucky Dam Village State Resort Park, Gilbertsville, KY, and will be open to the public.
Sharon Byers, Advisory Board Liaison, Land Between The Lakes, 100 Van Morgan Drive, Golden Pond, Kentucky 42211, (270) 924-2002.
The meeting agenda includes the following:
(1) Welcome/Introductions/Agenda.
(2) Advisory Board By-Laws and Charter.
(3) Membership Orientation/Lessons Learned.
(4) Land and Resource Management Plan Update.
(5) Nature Watch.
(6) Board Discussion of Comments Received.
(7) LBL Updates.
The meeting is open to the public. Written comments are invited and may be mailed to: William P. Lisowsky, Area Supervisor, Land Between The Lakes, 100 Van Morgan Drive, Golden Pond, Kentucky 42211. Written comments must be received at Land Between The Lakes by April 20, 2005, in order for copies to be provided to the members at the meeting. Board members will review written comments received, and at their request, oral clarification may be requested at a future meeting.
Forest Service, USDA.
Notice of meeting.
The Trinity County Resource Advisory Committee (RAC) will meet at the Trinity County Office of Education in Weaverville, California, April 18, 2005. The purpose of this meeting is to discuss proposed projects under Title II of the Secure Rural Schools and Community Self-Determination Act of 2000.
April 18, 2005.
The meetings will be held at the Trinity County Office of Education, 201 Memorial Drive, Weaverville, California.
Michael R. Odle, Assistant Public Affairs Officer and RAC Coordinator.
The meetings are open to the public. Public input sessions will be provided and individuals will have the opportunity to address the Trinity County Resource Advisory Committee.
Forest Service, USDA
Notice of meeting
The Shasta County Resource Advisory Committee (RAC) will meet at the USDA Service Center in Redding, California, May 4-5, June 1 and July 5 of 2005. The purpose of this meeting is to discuss proposed projects under Title II of the Secure Rural Schools and Community Self-Determination Act of 2000.
May 4-5, June 1, and July 5 of 2005.
The meetings will be held at the USDA Service Center, 3644 Avtech Parkway, Redding, California.
Michael R. Odle, Assistant Public Affairs Officer and RAC Coordinator.
The meetings are open to the Public. Public input sessions will be provided and individuals will have the opportunity to address the Shasta County Resource Advisory Committee.
Import Administration, International Trade Administration, Department of Commerce.
In response to a request from Companhia Siderúrgica Nacional (CSN), the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain hot-rolled flat-rolled carbon quality steel products from Brazil (A-351-828). This administrative review covers imports of subject merchandise produced and exported by CSN. The period of review (POR) is March 1, 2003, through February 29, 2004.
We preliminarily find that during the POR, CSN did not make sales of the subject merchandise at less than normal value (NV). However, since the subject merchandise was further manufactured in the United States by CSN LLC, and affiliated party, and sold to an unaffiliated U.S. customer as a galvanized product outside the scope of the antidumping order, we intend to verify the further manufacturing costs and sales information reported by CSN LLC for the final results. The briefing schedule will be extended accordingly. If these preliminary results are adopted in the final results of this administrative review, we will instruct U.S. Customs and Border Protection (CBP) to liquidate appropriate entries without regard to antidumping duties.
Interested parties are invited to comment on these preliminary results, including the Department's analysis regarding the date of sale. Parties who submit argument in this proceeding are requested to submit with the argument: 1) a statement of the issues, 2) a brief summary of the argument, and 3) a table of authorities.
April 6, 2005.
Helen Kramer or Kristin Najdi, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, telephone: (202) 482-0405 or (202) 482-8221, respectively.
On March 12, 2002, the Department published the antidumping duty order on certain hot-rolled flat-rolled carbon quality steel products from Brazil.
In accordance with 19 CFR 351.213(b)(2), on March 31, 2004, CSN requested that we conduct an administrative review of its sales of the subject merchandise. On April 28, 2004, the Department published in the
On May 10, 2004, the Department issued its antidumping duty questionnaire to CSN. On May 24, 2004, CSN requested that the Department agree to a limited home market reporting period, because the review in question only involved a single sale. Therefore, instead of providing the Department with home market sales throughout the POR, CSN proposed reporting home market sales made during the same six month “window” period as the U.S. sale, namely, November 2003, through April 2004. In the same letter, CSN also informed the Department that it intended to prepare a section D response to reflect costs of production during the 2003 fiscal year, not the POR. CSN explained that the subject merchandise sold to the U.S. market was all further-processed and sold as non-subject merchandise in the United States by its U.S. affiliate, CSN LLC, before delivery to the unaffiliated customer, and requested that it be allowed to limit its reporting of U.S. production costs to the actual month of production, instead of relying on the production experience for the entire twelve-month POR. Finally, CSN requested that the Department allow CSN to report its sales to its home market affiliate, Indútria Nacional de Aços Laminados INAL S.A. (INAL), instead of downstream sales of further manufactured merchandise, due to complexities of calculating further manufacturing costs for all of INAL's sales of further manufactured hot-rolled steel. CSN stated that the Department could then decide whether to use these sales in its analysis based on whether CSN's sales to INAL pass the arm's length test. On June 4, 2004, the Department responded to CSN's requests by 1) agreeing to limit the reporting period for home market sales to the six-month window of the U.S. sale; 2) rejecting CSN's request to report costs for the 2003 fiscal year; 3) rejecting CSN's request to limit its period for reporting further manufacturing costs to one month; and 4) allowing CSN to report its home market sales to INAL instead of downstream sales, if these pass the arm's length test.
CSN submitted its response to section A of the Department's questionnaire on June 15, 2004, and its responses to sections B and C on July 6, 2004. On July 30, 2004, United States Steel Corporation, a petitioner, submitted comments challenging the validity of this review. The petitioner specifically questioned whether the subject merchandise exported to the United States was actually manufactured by CSN, alleging that another Brazilian company was the manufacturer of the imports in question. The Department issued a supplemental section A, B, and C questionnaire on August 10, 2004, in which it informed CSN that its sales to INAL had failed the arm's length test and that it was required to report INAL's downstream sales. CSN filed its response on August 31, 2004, and submitted a revised sales listing on September 7, 2004, that included INAL's sales to unaffiliated parties. The Department received the sales reconciliation package from CSN on October 12, 2004, and on October 15, 2004, it issued its outline and agenda for the sales verification.
During the most recently completed segment of the proceeding in which CSN participated, the antidumping administrative review of the suspension agreement, the Department found and disregarded sales that failed the cost test.
On October 18, 2004, Nucor Corporation (Nucor), a domestic interested party, requested that the Department rescind the instant review. Nucor alleged that the date of the only reported POR sale by CSN fell outside of the POR, thus invalidating this entire segment of the proceeding.
Because it was not practicable to complete the preliminary results of this review within the normal time frame, we fully extended the time limit for this review until March 31, 2005.
As provided in section 782(i) of the Act, we verified the sales and cost information provided by CSN for use in our preliminary results using standard verification procedures, including on-site inspection of the manufacturer's facilities and the examination of relevant sales and financial records. We verified CSN's sales responses from October 25, 2004, through October 29, 2004, and cost responses from February 21, 2005, through February 25, 2005, at CSN's Presidente Vargas plant in Volta Redonda, Brazil. The results of these verifications are found in the sales verification report dated January 6, 2005, and the cost verification report dated March 31, 2005, on file in the Central Records Unit (CRU) of the Department in room B-099 of the main Department of Commerce Building, 14th Street and Constitution Avenue, NW, Washington, DC.
We intend to verify at CSN LLC's plant in Terre Haute, Indiana, all information pertaining to the U.S. sales and further manufacturing costs incurred in the United States.
The POR is March 1, 2003, through February 29, 2004.
For purposes of this order, the products covered are certain hot-rolled flat-rolled carbon-quality steel products, meeting the physical parameters described below, regardless of application.
The hot-rolled flat-rolled carbon-quality steel products subject to this review are of a rectangular shape, of a width of 0.5 inch of greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with plastics of other non-metallic substances, in coils (whether or not in successively superimposed layers) regardless of thickness, and in straight lengths, of a thickness less than 4.75 mm and of a width measuring at least 10 times the thickness. Specifically included in this scope are vacuum degassed, fully stabilized (IF) steels, high strength low alloy (HSLA) steels, and the substrate for motor lamination steels. Steel products to be included in the scope of this agreement, regardless of HTSUS definitions, are products in which: (1) iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent of less, by weight; and (3) none of the elements listed below exceeds certain specified quantities.
The merchandise subject to the order is currently classifiable under subheadings 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, 7211.19.75.90, 7212.40.10.00, 7212.40.50.00, and 7212.50.00.00 of the Harmonized Tariff Schedule of the United States (HTSUS). Certain hot-rolled flat-rolled carbon-quality steel covered by this agreement, including vacuum degassed and fully stabilized, high strength low alloy, and the substrate for motor lamination steel may also enter under tariff numbers 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Although the HTSUS subheadings are provided for convenience and CBP purposes, the written description of the scope of the order is dispositive.
To determine whether CSN made sales of hot-rolled flat-rolled carbon quality steel to the United States at less than fair value, we compared the constructed export price (CEP) to the NV, as described in the “Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(2) of the Act, we compared the CEP of the single U.S. transaction falling within the period of review to monthly weighted-average NVs.
In accordance with section 771(16) of the Act, we considered all products produced by CSN covered by the descriptions in the “Scope of the Order” section of this notice to be foreign like products for the purpose of determining appropriate product comparisons to CSN's U.S. sale of the subject merchandise.
We have relied on the following eleven criteria to match U.S. sales of the subject merchandise to sales in Brazil of the foreign like product: whether or not painted, quality, carbon content, yield strength, nominal thickness, width, cut-to-length or coil, whether or not temper rolled, whether or not pickled, edge trim, and whether or not containing patterns in relief.
In order to make a valid comparison between the two markets, we converted the quantity sold in the United States from pounds (lb) to metric tons (MT), and changed prices from a “per lb” basis to a “per MT” basis.
Since there were sales of identical merchandise in the home market in the same month as the date of the U.S. sale,
CSN requested this review on the basis of the date of its entry of subject merchandise and the date of the unaffiliated U.S. customer's purchase order within the POR. On October 18, 2004, Nucor alleged that the purchase order did not establish the material terms of sale because the amount of a surcharge imposed by CSN LLC on the further manufactured merchandise was not known until the month of shipment. Nucor argued that, since shipment occurred after the POR, the final price to the U.S. customer was not determined until after the end of the POR, and thus there was no sale for the Department to review. As such, they assert that we should rescind the review.
We agree in part with Nucor. As CSN explains, the imposition of surcharges was a practice that developed on an industry-wide basis in the United States during 2004, mainly in response to the rapidly rising cost of steel scrap, which increased production costs for non-integrated manufacturers of steel.
We disagree with Nucor that the absence of a sale during the POR is a basis for terminating this review. While section 751(a)(2)(A) of the Act states that a dumping calculation should be performed for each entry during the POR, section 351.213(e) of the Department's regulations gives the Department flexibility in this regard by stating that the review can be based on entries, exports, or sales. Indeed, the Department's normal practice for CEP sales made after importation is to examine each transaction that has a date of sale within the POR and to liquidate POR entries based on the dumping margin calculated on those POR sales.
We have also recognized that unique circumstances could lead us to base the margin for CEP sales on the sales entered rather than sold during the POR. Here, the respondent requesting an administrative review of its POR entries had only one entry during the POR, but no POR sales upon which to calculate a dumping margin for that entry. Because the entry during the POR can be tied to a sale occurring after the end of the POR and there are no other U.S. sales during the POR that could be considered for examination as a proxy for the post-POR sale, it is appropriate to determine the duties to be assessed on this entry based on the corresponding sale. Therefore, because the purpose of an administrative review is to establish the antidumping duty for entries, as well as to establish a new cash deposit rate (see section 751(a)), and we are able to tie the sale occurring shortly after the end of the POR to the entry during the POR, we are using this U.S. sale and the corresponding home market sales in the month of the U.S. sale in our margin calculation. Thus, we are conducting this review on the basis of the date of entry within the POR, and linking the entered subject merchandise to the appropriate sale to the unaffiliated U.S. customer.
We will instruct the CBP to liquidate the specific entry at the calculated rate. If CSN is a respondent in an administrative review covering the period March 1, 2004, through February 28, 2005, we will exclude this U.S. sale from our margin calculation.
Section 772(b) of the Act defines constructed export price (CEP) as the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by, or for the account of, the producer or exporter of such merchandise, or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter, as adjusted under sections 772(c) and (d).
In contrast, section 772(a) of the Act defines export price (EP) as the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under section 772(c).
In the instant review, CSN sold subject merchandise through an affiliated company, CSN LLC of Terre Haute, Indiana. CSN reported its single U.S. sale of subject merchandise as a CEP transaction and explained that its U.S. affiliate, CSN LLC, further manufactured the subject merchandise. The resulting product sold to the unaffiliated U.S. customer falls outside the scope of this antidumping duty order.
After reviewing the evidence on the record of this review, we have preliminarily found that this particular CSN transaction is classified properly as a CEP sale because the sale occurred in the United States and was made through its U.S. affiliate to an unaffiliated U.S. buyer. Such a determination is consistent with section 772(b) of the Act and the U.S. Court of Appeals for the
For this particular CEP sales transaction, we calculated price in conformity with section 772(b) of the Act. We based CEP on the packed, delivered prices to an unaffiliated purchaser in the United States. Pursuant to section 772(c)(2)(A) of the Act, we made deductions for movement expenses; these included foreign inland freight, foreign inland insurance, foreign brokerage and handling, international freight, marine insurance, U.S. brokerage and handling, U.S. customs duties, and inland freight to the unaffiliated U.S. customer. In accordance with section 772(d)(1) of the Act, we deducted those selling expenses associated with economic activities occurring in the United States, including imputed credit expenses and indirect selling expenses. We also made adjustments for the cost of further manufacturing and profit from economic activities in the United States, in accordance with sections 772(d)(2) and (3) of the Act.
To determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared CSN's volume of home market sales of the foreign like product to the volume of U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(B) of the Act. Because CSN's aggregate volume of home market sales of the foreign like product was greater than five percent of its aggregate volume of U.S. sales for the subject merchandise, we determined that the home market was viable.
CSN reported sales in the home market to an affiliated company, INAL. The Department calculates NV based on sales to affiliated parties only if it is satisfied that the prices to the affiliates are comparable to the prices at which sales are made to unaffiliated parties,
To test whether these sales were made at arm's length, we compared the starting prices of sales to affiliated and unaffiliated customers net of all movement and direct selling expenses, discounts and packing. In current practice, if the prices charged to an affiliated party were, on average, between 98 and 102 percent of the prices charged to unaffiliated parties for merchandise identical or most similar to that sold to the affiliated party, we consider the sales to be at arm's length prices.
We calculated NV based on prices to unaffiliated customers. We adjusted gross unit price for billing adjustments, interest revenue and indirect taxes. We made deductions, where appropriate, for foreign inland freight, warehousing expense and insurance, pursuant to section 773(a)(6)(B) of the Act. In addition, we made adjustments for differences in circumstances of sale for imputed credit expenses and commissions, in accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410. Finally, we deducted home market packing costs and added U.S. packing costs in accordance with sections 773(a)(6)(A) and (B) of the Act.
At the time the questionnaire was issued in this administrative review, the antidumping duty administrative review of the suspension agreement was the most recently completed segment of this proceeding. In accordance with section 773(b)(2)(A)(ii) of the Act, and consistent with the Department's practice, because we disregarded certain below-cost sales by CSN in the review of the suspension agreement, we found reasonable grounds to believe or suspect that this respondent made sales in the home market at prices below the cost of producing the merchandise. We, therefore, initiated a cost investigation with regard to CSN in order to determine whether this respondent made home market sales during the POR at prices below COP within the meaning of section 773(b)(2)(A)(ii) of the Act.
In accordance with section 773(b)(3) of the Act, we calculated the weighted-average COP for each model based on the sum of CSN's material and fabrication costs for the foreign like product, plus amounts for selling expenses, general and administrative expenses (G&A), interest expenses and packing costs. The Department relied on the COP data reported by CSN, except for the G&A expense ratios. We revised their reported home market and U.S. G&A expense ratios to correct for fees that were incurred by the U.S. affiliate, CSN LLC, but which CSN reported as expenses in Brazil. For changes made to the COP information,
We compared the weighted-average COP figures to the home market sales prices of the foreign like product as required under section 773(b) of the Act, to determine whether these sales had been made at prices below COP. On a product-specific basis, we compared the COP to home market prices net of any applicable billing adjustments, state ICMS and federal IPI indirect taxes (which were not included in CSN's reported manufacturing costs), and any applicable movement charges.
Pursuant to section 773(b)(2)(C)(i) of the Act, where less than twenty percent of a respondent's sales of a given product were at prices less than the COP, we do not disregard any below-cost sales of that product because the below-cost sales were not made in “substantial quantities.” Where twenty percent or more of a respondent's sales of a given product during the POR were at prices less than the COP, we determine such sales to have been made in substantial quantities.
Our cost test revealed that more than twenty percent of CSN's home market
In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (LOT) as the export transaction. The NV LOT is that of the starting-price sales in the comparison market. For CEP, it is the level of the constructed sale from the exporter to the importer. We consider only the selling activities reflected in the U.S. price after the deduction of expenses incurred in the United States and CEP profit under section 772(d) of the Act.
To determine whether NV sales are at a different LOT than CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. We analyze whether different selling activities are performed, and whether any price differences (other than those for which other allowances are made under the Act) are shown to be wholly or partly due to a difference in LOT between the CEP and NV. Pursuant to section 773(a)(7)(A) of the Act, we make an upward or downward adjustment to NV for LOT if the difference in LOT involves the performance of different selling activities and is demonstrated to affect price comparability, based on a pattern of consistent price differences between sales at different LOTs in the country in which NV is determined. Finally, if the NV LOT is at a more advanced stage of distribution than the LOT of the CEP, but the data available do not provide an appropriate basis to determine a LOT adjustment, we reduce NV by the amount of indirect selling expenses incurred in the foreign comparison market on sales of the foreign like product, but by no more than the amount of the indirect selling expenses incurred for CEP sales.
In analyzing differences in selling functions, we determine whether the LOTs identified by the respondent are meaningful.
CSN claimed three LOTs in the home market based on distinct channels of distribution to two categories of customers: distributors and end-users. CSN's channels of distribution were direct sales from the mill to customers, sales through branches located at service centers where further processing services were provided, such as cutting and slitting, and downstream sales made through CSN's affiliate, INAL. We examined the reported selling functions and found that CSN's home market selling functions for all customers include pre-sale technical assistance, continuous technical service, price negotiation/customer communications, processing of customer orders, freight and delivery arrangements, sales calls and visits, credit evaluation, and warranty and return services. In addition, CSN also performs inventory maintenance for all customers except end-users buying directly from CSN. Finally, CSN makes small quantity sales only through INAL.
CSN's U.S. sale was made through one channel of distribution to its U.S. affiliate. Pursuant to the Department's practice, we determined the LOT of the U.S. sale based on the selling functions performed for the sale to CSN LLC, which include price negotiation/customer communications, processing customer orders, and freight and delivery arrangements.
We compared CSN's channels of distribution and selling functions in the home market with the selling functions for U.S. sales to its affiliate, CSN LLC. CSN's selling functions for sales to the United States are less numerous and less complex than CSN's selling functions for its home market sales in any of the channels of distribution. Further, in the home market, the chain of distribution is further from the factory,
We made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Dow Jones Reuters Business Interactive LLC (trading as Factiva).
As a result of our review, we preliminarily find the weighted-average dumping margin for the period March 1, 2003, through February 29, 2004, to be as follows:
The Department will disclose calculations performed in connection with these preliminary results of review within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Case briefs for this review must be submitted to the Department no later than fourteen days after the date of the final U.S. verification report issued in this proceeding. Rebuttal briefs must be filed seven days from the deadline date for case briefs. Parties submitting arguments in this proceeding are requested to submit with the argument: 1) a statement of the issue, 2) a brief summary of the argument, and (3) a
Also, an interested party may request a hearing within 30 days of the date of publication of this notice.
Upon completion of this administrative review, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated an importer-specific
The following cash deposit requirements will be effective upon completion of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(1) of the Act: (1) the cash deposit rate for CSN will be the rate established in the final results of the administrative review (except that no deposit will be required if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
These preliminary results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
In response to a timely request by the petitioners,
We preliminarily determine that sales have been made below normal value. Interested parties are invited to comment on the preliminary results. If the preliminary results are adopted in our final results of administrative review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries.
In addition, the Department has received information sufficient to warrant a successor-in-interest analysis in this administrative review. Based on this information, we preliminarily determine that UGITECH S.A. is the successor-in-interest to Ugine-Savoie Imphy S.A. (Ugine-Savoie) for purposes of determining antidumping duty liability. Interested parties are invited to comment on the preliminary results.
April 6, 2005.
Terre Keaton or David J. Goldberger, AD/CVD Operations, Office 2, Import Administration-Room B099, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-1280 or (202) 482-4136, respectively.
On March 7, 2002, the Department published in the
On May 6, 2004, we issued a antidumping duty questionnaire to UGITECH which included successor-in-interest questions. Responses to the original questionnaire were received in July 2004. We issued a supplemental questionnaire in October 2004, and received responses in October and November 2004 and January 2005.
On November 5, 2004, we extended the time limit for the preliminary results in this review until March 30, 2005.
In November 2004, we conducted a verification of certain portions of UGITECH's questionnaire responses, in accordance with 19 CFR 351.307. The results of this verification are described in the Memorandum to the File dated January 13, 2005, from Terre Keaton
and David J. Goldberger, International Trade Compliance Analysts, through Irene Darzenta Tzafolias, Program Manager, entitled:
In January 2005, as instructed by the Department, UGITECH submitted revised sales data pursuant to verification findings and revised cost data pursuant to cost supplemental questionnaires. In February 2005, the petitioner and the respondent submitted comments for purposes of the preliminary results. On March 15, 2005, we issued UGITECH a supplemental questionnaire concerning certain cost of production (COP) issues. We received UGITECH's response on March 23, 2005.
For purposes of this order, the term “stainless steel bar” includes articles of stainless steel in straight lengths that have been either hot-rolled, forged, turned, cold-drawn, cold-rolled or otherwise cold-finished, or ground, having a uniform solid cross section along their whole length in the shape of circles, segments of circles, ovals, rectangles (including squares), triangles, hexagons, octagons, or other convex polygons. Stainless steel bar includes cold-finished stainless steel bars that are turned or ground in straight lengths, whether produced from hot-rolled bar or from straightened and cut rod or wire, and reinforcing bars that have indentations, ribs, grooves, or other deformations produced during the rolling process.
Except as specified above, the term does not include stainless steel semi-finished products, cut length flat-rolled products (
The stainless steel bar subject to this order is currently classifiable under subheadings 7222.11.00.05, 7222.11.00.50, 7222.19.00.05, 7222.19.00.50, 7222.20.00.05, 7222.20.00.45, 7222.20.00.75, and 7222.30.00.00 of the
In its July 2, 2004, section A response (hereafter section A response), UGITECH reported that on November 28, 2003, the shareholders of Ugine-Savoie voted to change the company's name to UGITECH S.A. UGITECH claimed that Ugine-Savoie and UGITECH remain the same legal entity and there was no change in ownership associated with the change in name. According to the section A response, prior to the name change, Ugine-Savoie Imphy dissolved one of its wholly-owned French subsidiaries (
Thus, in accordance with section 751(b) of the Act, the Department is conducting a successor-in-interest analysis to determine whether UGITECH is the successor-in-interest to Ugine-Savoie Imphy S.A. for purposes of determining antidumping liability with respect to the subject merchandise. In making such a successor-in-interest determination, the Department examines several factors including, but not limited to, changes in: (1) management; (2) production facilities; (3) supplier relationships; and (4) customer base.
We preliminarily determine that UGITECH is the successor-in-interest to Ugine-Savoie. UGITECH submitted documentation supporting its claims that its name change resulted in no significant changes in either production facilities, supplier relationships, customer base, or management. This documentation consisted of: (1) a copy of the board meeting minutes for the name change; (2) a copy of the article of incorporation for UGITECH; (3) copies of the official registration of Ugine-Savoie (before the name change) and UGITECH (after the name change); and (4) copies of the statements of dissolution for Ugine-Savoie France S.A. and Sprint Metal S.A. These documents, which the Department examined thoroughly at verification, demonstrate that UGITECH operates as the same business entity as Ugine-Savoie. Because UGITECH has presented evidence to establish a
To determine whether sales of SSB by UGITECH to the United States were made at less than normal value (NV), we compared constructed export price (CEP) to the NV, as described in the “Constructed Export Price” and “Normal Value” sections of this notice.
Pursuant to section 777A(d)(2) of the Act, we compared the CEPs of individual U.S. transactions to the weighted-average NV of the foreign like product where there were sales made in the ordinary course of trade, as discussed in the “Cost of Production Analysis” section below.
In accordance with section 771(16) of the Act, we considered all products produced by UGITECH covered by the description in the “Scope of the Order” section, above, to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. We compared U.S. sales to sales made in the home market within the contemporaneous window period, which extends from three months prior to the month of the U.S. sale until two months after the sale. Where there were no sales of identical merchandise in the comparison market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making the product comparisons, we matched foreign like products based on the physical characteristics reported by UGITECH in the following order: general type of finish; grade; remelting process; type of final finishing operation; shape; and size range.
For the preliminary results, we have reclassified UGITECH's separate grade codes 0760 and 0780 as a single grade code because the information on the record indicates that these grades are essentially identical (they have exactly the same specifications for nickel, chromium, molybdenum, sulphur and carbon components).
UGITECH identified its sales of reinforcing bar under the final finishing product characteristic (FFINISHH/U) but did not identify it under the shape product characteristic (SHAPEH/U). We have preliminarily determined that this type of bar should be identified under the SHAPEH/U variable, as such SSB normally features indentations, ribs, grooves, or other deformations produced during the rolling process. Accordingly, we have identified the reinforcing SSB under the SHAPEH/U variable. In addition, based on the information provided by UGITECH in its March 14, 2005, letter, we reclassified the FFINISHH/U product characteristics for reinforcing bar.
In addition, UGITECH reported sales of hot-rolled bar that was peeled or descaled, and added a FFINISHH/U code for this characteristic at the end of the FFINISHH/U hierarchy. Based on our analysis of UGITECH's production flow chart at Appendix SA-1 of the October 28, 2004, supplemental questionnaire response, we believe that it is more appropriate to place the peeled or descaled characteristic between “shot blasted” and “rough-turned,” rather than after “centerless ground,” as reported by UGITECH. Consequently, we have revised UGITECH's coding of the final finishing characteristic in order to provide more appropriate model matches.
We calculated CEP in accordance with section 772(b) of the Act because the subject merchandise was sold for the account of UGITECH by its subsidiary Ugine Stainless & Alloy, Inc. (US&A) in the United States to unaffiliated purchasers. In addition, UGITECH reported sales of SSB which were further processed by US&A in the United States. For the subject merchandise further processed in the United States, we used the starting price of the subject merchandise and deducted the costs of the further processing to determine CEP for such merchandise, in accordance with section 772(d)(2) of the Act. To calculate the cost of further manufacturing, we relied on UGITECH's reported cost of further manufacturing materials, labor, and overhead, plus amounts for further manufacturing general and administrative expenses (G&A) and financial expenses, as reported in the January 14, 2005, supplemental section E questionnaire response.
We based CEP on the packed prices to unaffiliated purchasers in the United States. We identified the correct starting price, by adjusting for alloy surcharges, freight revenue, other revenue and billing adjustments associated with the sale, and by making deductions for discounts, where applicable. We also made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act. These expenses included, where appropriate, foreign inland freight (including freight from the plant/warehouse to the port of exportation), brokerage and handling, ocean freight, marine insurance, U.S. inland freight expenses (including freight from the U.S. port to the warehouse, freight between warehouses, and freight from the warehouse to the unaffiliated customer), and U.S. customs duties and fees (including harbor maintenance fees and merchandise processing fees). In accordance with section 772(d)(1) of the Act, we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (commissions, credit expenses, warranty expenses, other direct selling expenses and repacking expenses) and indirect selling expenses (indirect selling expenses and inventory carrying costs) incurred in the country of exportation and the United States. For the sales where the payment date was not reported, we set the payment date equal to the preliminary results date (
In Appendix SA-2 of the November 22, 2004, supplemental questionnaire response, UGITECH reported that the terms of its sales agreement with a certain U.S. customer involved the transfer of specific equipment from UGITECH to the customers. While it may be appropriate to consider the cost of this equipment to be a direct selling expense attributable to all sales covered by the agreement, the per-unit amount for such an expense, according to UGITECH's February 23, 2005, letter at page 8, is well under 0.33 percent
In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared the volume of home market sales of the foreign like product to the volume of U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(C) of the Act.
Because UGITECH's aggregate volume of home market sales of the foreign like product was greater than five percent of its aggregate volume of U.S. sales for the subject merchandise, we determined that its home market was viable.
During the POR, UGITECH sold the foreign like product to affiliated customers. To test whether these sales were made at arm's-length prices, we compared, on a product-specific basis, the starting prices of sales to affiliated and unaffiliated customers, net of all discounts and rebates, movement charges, direct selling expenses (including commissions), and packing expenses. Where the price to the affiliated party was, on average, within a range of 98 to 102 percent of the price
Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (LOT) as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent).
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying levels of trade for EP and comparison market sales (
When the Department is unable to match U.S. sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP or CEP sales at a different LOT in the comparison market, where available data make it practicable, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if the NV LOT is more remote from the factory than the CEP LOT and there is no basis for determining whether the difference in LOTs between NV and CEP affects price comparability (
UGITECH sold SSB to end-users and distributors in both the U.S. and home markets. UGITECH claims that it made CEP sales in the U.S. market (through its U.S. affiliate, US&A) through the following two channels of distribution: 1) sales of UGITECH-produced SSB purchased from UGITECH, and 2) sales of UGITECH-produced SSB purchased from Trafilerie Bedini, S.r.l (Bedini)
With respect to the home market, UGITECH claimed five channels of distribution (channels 3 through 7) described as follows: 3) factory direct sales; 4) ex-inventory sales of standard SSB; 5) ex-inventory sales of SSB for special applications; 6) sales of ex-inventory French-origin standard SSB purchased from Bedini; and 7) sales of ex-inventory French-origin SSB for special applications purchased from Bedini. According to UGITECH, the direct sales (channel 3), the ex-inventory standard SSB sales (channels 4 and 6), and the ex-inventory SSB with special application sales (channels 5 and 7) constitute three distinct levels of trade in the home market.
In determining whether separate LOTs exist in the home market, we compared the selling functions performed across all channels of distribution. We found that, except for inventory maintenance, all selling functions were performed across all channels of distribution with only slight variances in the levels of intensity for a few sales activities listed within certain selling functions. We note that the selling functions (
With respect to inventory maintenance, we find that there is a significant difference in the level of intensity reported for the three activities (
Finally, we compared the CEP LOT to the home market LOT and found that the selling functions performed for home market customers are either performed at a higher degree of intensity or are greater in number than the selling functions performed for the U.S. customer. For example, in comparing the selling activities noted under the various selling functions reported (
As home market and U.S. sales were made at different LOTs, we could not match CEP sales to home market sales at the same LOT. Moreover, as we found only one LOT in the home market, it was not possible to make an LOT adjustment to home market sales because such an adjustment is dependent upon our ability to identify a pattern of consistent price differences between the home market sales on which NV is based and home market sales at the LOT of the export transaction. Furthermore, we have no other information that provides an appropriate basis for determining an LOT adjustment. Because the data available do not form an appropriate basis for making an LOT adjustment, but the home market LOT is at a more advanced stage of distribution than the CEP LOT, we have made a CEP offset to NV in accordance with section 773(a)(7)(B) of the Act. The CEP offset is calculated as the lesser of: (1) the indirect selling expenses on home market sales, or (2) the indirect selling expenses deducted from the starting price in calculating CEP.
In the less-than-fair-value (LTFV) investigation, the Department disregarded certain sales made by UGITECH that failed the cost test (
In accordance with section 773(b)(3) of the Act, we calculated UGITECH's COP and constructed value (CV) based on the sum of UGITECH's costs of materials and conversion for the foreign like product, plus amounts for G&A expenses and interest expenses (
Our revisions to UGITECH's COP data are discussed in the Memorandum from Joseph Welton, Accountant, to Neal Halper, Director, entitled
On a product-specific basis, we compared the adjusted weighted-average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. For purposes of this comparison, we used COP exclusive of selling and packing expenses. The prices (inclusive of interest revenue, where appropriate) were exclusive of any applicable movement charges, rebates, discounts, and direct and indirect selling expenses and packing expenses, revised where appropriate, as discussed below under “Price-to-Price Comparisons.” In determining whether to disregard home market sales made at prices less than their COP, we examined, in accordance with sections 773(b)(1)(A) and (B) of the Act, whether such sales were made: (1) within an extended period of time, (2) in substantial quantities, and (3) at prices which did not permit the recovery of all costs within a reasonable period of time.
Pursuant to section 773(b)(1) of the Act, where less than 20 percent of the respondent's sales of a given product are at prices less than the COP, we do not disregard any below-cost sales of that product, because we determine that in such instances the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we determine the below-cost sales represent “substantial quantities” within an extended period of time, in accordance with section 773(b)(1)(A) of the Act. In such cases, we also determine whether such sales were made at prices which would not permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(1)(B) of the Act.
We found that, for certain specific products, more than 20 percent of UGITECH's home market sales were at prices less than the COP and, in addition, such sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
We calculated NV based on delivered prices to unaffiliated customers or prices to affiliated customers that were determined to be at arm's length. We made adjustments, where appropriate, to the starting price for billing corrections, early payment discounts and rebates. We made deductions, where appropriate, from the starting price for inland freight (from the plant to the warehouse or plant to the customer), warehousing expenses, and inland insurance, under section 773(a)(6)(B)(ii) of the Act.
For the sales where the payment date was not reported, we set the payment date equal to the preliminary results date (
We made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. In addition, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in circumstances of sale for imputed credit expenses and warranty expenses.
We also deducted home market packing costs and added U.S. packing costs, in accordance with section 773(a)(6)(A) and (B) of the Act. Finally, as discussed above under the Level of Trade section, we made a CEP offset pursuant to section 773(a)(7)(B) of the Act and 19 CFR 351.412(f). We calculated the CEP offset as the lesser of the indirect selling expenses on the comparison-market sales or the indirect selling expenses deducted from the starting price in calculating CEP.
We made currency conversions in accordance with section 773A of the Act based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
As a result of this review, we preliminarily determine that the weighted-average dumping margin for the period March 1, 2003, through February 29, 2004, is as follows:
We will disclose the calculations used in our analysis to parties to this proceeding within five days of the publication date of this notice.
Interested parties who wish to request a hearing or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, Room B-099, within 30 days of the date of publication of this notice. Requests should contain: (1) the party's name, address and telephone number; (2) the number of participants; and (3) a list of issues to be discussed.
Issues raised in the hearing will be limited to those raised in the respective case briefs. Case briefs from interested parties and rebuttal briefs, limited to the issues raised in the respective case briefs, may be submitted in accordance with a schedule to be determined. Parties who submit case briefs or rebuttal briefs in this proceeding are requested to submit with each argument (1) a statement of the issue and (2) a brief summary of the argument. Parties are also encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited.
The Department will issue the final results of this administrative review, including the results of its analysis of issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act.
The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212. The Department will issue appropriate appraisement instructions for the companies subject to this review directly to CBP within 15 days of publication of the final results of this review.
For assessment purposes, we calculated importer- or customer-specific ad valorem duty assessment rates based on the ratio of the total amount of dumping margins calculated for the examined sales to the total entered value of those same sales.
We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer- or customer-specific assessment rate calculated in the final results of this review is above
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(1) of the Act: (1) the cash deposit rate for the reviewed company will be that established in the final results of this review, except if the rate is less than 0.50 percent, and therefore,
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council's (Council) Ad Hoc Groundfish Trawl Individual Quota Committee (TIQC) will hold a working meeting which is open to the public.
The TIQC working meeting will begin Tuesday, May 10, 2005 at 8:30 a.m. and may go into the evening if necessary to complete business for the day. The meeting will reconvene from 8:30 a.m. and continue until business for the day is complete on Wednesday, May 11, 2005.
The meeting will be held in the Broadway Room at the Residence Inn by Marriott-Portland Downtown, RiverPlace, 2115 SW River Parkway, Portland, OR 97201. Telephone: 503-552-9500
Mr. Jim Seger, Staff Officer (Economist), 503-820-2280.
The purpose of the TIQC working meeting is to continue to review results from public scoping and some preliminary analysis, and refine recommendations to the Council on an individual quota program to cover limited entry trawl landings in the West Coast groundfish fishery.
Although nonemergency issues not contained in the TIQC meeting agenda may come before the TIQC for discussion, those issues may not be the subject of formal TIQC action during these meetings. TIQC action will be restricted to those issues specifically listed in this notice and to any issues arising after publication of this notice requiring emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the TIQC's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at 503-820-2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council's (Council) Highly Migratory Species Management Team (HMSMT) will hold a work session, which is open to the public.
The work session will be Thursday, May 12, 2005, from 1 p.m. until 5 p.m. and Friday, May 13, 2005, from 9 a.m. until business for the day is completed.
The work session will be held at the National Marine Fisheries Service, Southwest Fisheries Science Center, Large Conference Room, 8604 La Jolla Shores Drive, Room D-203, La Jolla, CA 92037, (858) 546-7000
Dr. Kit Dahl, Pacific Fishery Management Council (503) 820-2280.
The main purpose of this work session is for the HMSMT to review issues related to the implementation of the HMS fishery management plan and make recommendations to the Council on future action on these issues. Issues discussed could include the Council's response to overfishing of bigeye tuna and other HMS so declared in the future, developing sea turtle bycatch mitigation measures for the West Coast high seas longline fishery, establishing a limited entry program for the West Coast high seas longline fishery, implementation of an observer coverage plan, and review of exempted fishing permits, among others. This HMSMT
Although nonemergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date.
The Commodity Futures Trading Commission has determined to renew again for a period of two years its advisory committee designated as the “Agricultural Advisory Committee.” The Commission certifies that the renewal of the advisory committee is in the public interest in connection with duties imposed on the Commission by the Commodity Exchange Act, 7 U.S.C. 1,
The objectives and scope of activities of the Agricultural Advisory Committee are to conduct public meetings and submit reports and recommendations on issues affecting agricultural producers, processors, lenders and others interested in or affected by agricultural commodities markets, and to facilitate communications between the Commission and the diverse agricultural and agriculture-related organizations represented on the Committee. The Committee's membership represents a cross-section of interested and affected groups including representatives of producers, processors, lenders and other interested agricultural groups.
Interested persons may obtain information or make comments by writing to the Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581.
Consumer Product Safety Commission.
Notice.
It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the
Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by April 21, 2005.
Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 05-C0007, Office of the Secretary, Consumer Product Safety Commission, Washington, DC 20207.
Andrea S. Paterson, Trial Attorney, Office of Compliance, Consumer Product Safety Commission, Washington, DC 20207; telephone (301) 504-7615.
The text of the Agreement and Order appears below.
1. Hamilton Beach/Proctor-Silex, Inc. (hereinafter “HB/PS” or “Respondent”) enters into this Settlement Agreement and Order (hereinafter, “Settlement Agreement” or “Agreement”) with the staff of the U.S. Consumer Product Safety Commission (the “Commission”), and agrees to the entry of the attached Order incorporated by reference herein. The Settlement Agreement resolves the Commission staff's allegations set forth below.
2. The Commission is an independent federal regulatory commission responsible for the enforcement of the Consumer Product Safety Act (“CPSA”), 15 U.S.C. 2051-2084.
3. HB/PS is headquartered in Glen Allen, Virginia, and incorporated in Delaware.
4. In the last five years, HB/PS has failed to report in a timely manner concerning three separate products: countertop toasters, juice extractors, and slow cookers, in violation of section 15(b) of the CPSA, 15 U.S.C. 2064(b).
5. Each of these products was sold to and/or used by consumers in or around a permanent or temporary household or residence, a school, in recreation, or otherwise and was, therefore, a “consumer product” as defined in section 3(a)(1) of the CPSA, 15 U.S.C. 2052(a)(1). Furthermore, HB/PS was an importer and, therefore, was a “manufacturer” of these toasters, juice extractors, and slow cookers, for distribution in “commerce,” as those terms are defined in sections 3(a)(4) and (12) of the CPSA, 15 U.S.C. 2052(a)(4), (12).
6. HB/PS imported and distributed model 24205 and 24208 countertop toasters (the “subject toasters” or “toasters”) from April 1997 through September 1999. These toasters were manufactured for HB/PS by Durable Electrical Metal Factory, Ltd., in China. These traditional upright electric toasters had four extra-wide slots that could toast either bagels or bread. On the front of the toasters was a bread lifter for raising or lowering the food, as well as a control dial, numbered 1-6, which consumers used to adjust the degree of toasting. The model 24205 was white, and model 24208 was black and chrome. Both models had the name “Proctor-Silex” in grey letters on the front panel.
7. The subject toasters were defective because their heating elements could remain on after the food in the toaster “popped up,” which should have caused the heating element to
8. Between 1997 and 1999, HB/PS learned of three consumer reports of damage to kitchen cabinets or countertops due to fires and received over 230 consumer complaints involving toasters that may have failed to turn off. The company also knew of product changes to attempt to correct the problem.
9. Before reporting the subject toasters to the Commission on November 9, 1999, HB/PS had obtained information which reasonably supported the conclusion that the subject toasters contained a defect which could create a substantial product hazard or created an unreasonable risk of serious injury.
10. Respondent failed to report to the Commission in a timely manner, as required by section 15(b) of the CPSA, 15 U.S.C. 2064(b). In doing so, HB/PS violated section 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4).
11. Respondent committed this failure to report to the Commission “knowingly” as that term is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d), subjecting Respondent to civil penalties under section 20 of the CPSA, 15 U.S.C. 2069.
12. HB/PS imported and distributed juice extractor models 67150, 67180, 67180W, 67199, 395WS and 3920JS (the “subject extractors” or “juice extractors”) between 1992 and October 2001. Simatelex Manufacturing Company, Ltd. (1991 to 1995) and Join-One Enterprise Co. Ltd. (1996 to 2001) manufactured these juice extractors for HB/PS. All of the juice extractors consisted of the same basic pieces: a base, a strainer basket (consisting of a strainer and a metal cutter), a top cover with a food chute (through which the food to be juiced was fed with a pusher), a juice cup, and a refuse pulp bin. The juicer bases, constructed of white plastic with the name “Hamilton Beach” on the side, housed the juicer motors, ranging from 140-150 watts (Simatelex) to 300-350 watts (Join-One).
13. The subject juice extractors contained a defect that could cause the strainer basket and lid to break apart, posing a risk of injury to nearby consumers who could be struck by pieces of metal or plastic.
14. Between 1992 and 2001, HB/PS received 59 consumer complaints related to the alleged defect. Consumer reports of injuries included four consumers who received lacerations requiring stitches and five consumers alleging possible eye injuries.
15. Before reporting the subject juice extractors to the Commission on October 8, 2001, HB/PS had obtained information which reasonably supported the conclusion that the subject juice extractors contained a defect which could create a substantial product hazard or created an unreasonable risk of serious injury.
16. Respondent failed to report to the Commission in a timely manner, as required by section 15(b) of the CPSA, 15 U.S.C. 2064(b). In doing so, HB/PS violated section 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4).
17. Respondent committed this failure to report to the Commission “knowingly” as that term is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d), subjecting Respondent to civil penalties under section 20 of the CPSA, 15 U.S.C. 2069.
18. HB/PS imported and distributed slow cooker models 33390, 33475, 33575, 33590, 33675, 33690, 33725, 33850, 33860, 33680, 33320, 33320FD, 33325, 33375, 33380, 33625A, 106661, and 106851 (the “subject slow cookers” or “slow cookers”) from January 1999 through December 2002. These slow cookers were manufactured for HB/PS by Huamei Electronics Co., Ltd., in China. These slow cookers shared the same basic elements: a cooker base with a heating element and handles, a ceramic inset where the food to be cooked was placed, and a tight-fitting lid. Most of the subject slow cookers were sold under the “Hamilton Beach” or “Proctor Silex” names, with the brand name printed on the particular unit's front. They were round or oval, were solid white or had various print designs on the outside, and had 3.5 quart to 6.5 quart capacities.
19. The subject slow cookers were defective because their handles could crack and break off when the product was lifted. This defect posed a risk of burns from hot food spilling onto consumers.
20. Between 1999 and 2001, HB/PS received over 2000 complaints of cracked or broken slow cooker handles, including two reports of consumers who required medical attention for injuries, as well as information regarding product changes to attempt to address the problem of handles breaking.
21. Before February 4, 2002, when HB/PS first shared incident and other data on the slow cookers with the staff, HB/PS had obtained information which reasonably supported the conclusion that the subject slow cookers contained a defect which could create a substantial product hazard or created an unreasonable risk of serious injury.
22. Respondent failed to report to the Commission in a timely manner, as required by section 15(b) of the CPSA, 15 U.S.C. 2064(b). In doing so, Respondent violated section 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4).
23. Respondent committed this failure to report to the Commission “knowingly” as that term is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d), subjecting Respondent to civil penalties under section 20 of the CPSA, 15 U.S.C. 2069.
24. HB/PS contests and denies the staff's allegations set forth above in this Settlement Agreement. HB/PS enters into this Settlement Agreement and Order to resolve this claim without the expense and distraction of litigation. By agreeing to this settlement, HB/PS does not admit any of the allegations set forth above in this Settlement Agreement, or any fault, liability or statutory or regulatory violation.
25. HB/PS, voluntarily and without the Commission having requested information from HB/PS, notified the Commission in each of the matters described above. In addition, HB/PS voluntarily recalled each of the products in cooperation with the Commission.
26. At all times HB/PS closely monitored its reporting obligations under the Consumer Product Safety Act. HB/PS never knowingly failed to file a required report with the Commission. HB/PS has continued to improve its efforts to meet its reporting obligations under the CPSA.
27. The Consumer Product Safety Commission has jurisdiction over this matter and over Respondent under the Consumer Product Safety Act, 15 U.S.C. §§ 2051-2084.
28. Respondent agrees to be bound by and comply with this Settlement Agreement and Order.
29. This Agreement is entered into for settlement purposes only and does not constitute an admission by Respondent or a determination by the Commission that Respondent knowingly violated the VPSA's reporting requirements, or a finding of fact or law by the CPSC of any of the allegations in this Settlement Agreement.
30. In settlement of the staff's allegations, Respondent agrees to pay a civil penalty of one million, two hundred thousand and 00/100 dollars ($1,200,000), in full settlement of this matter, and payable within twenty (20) calendar days of receiving services of
31. Upon final acceptance of this Agreement by the Commission and issuance of the Final Order, Respondent knowingly, voluntarily, and completely waives any rights it may have in this matter (1) to an administrative hearing, (2) to judicial review or other challenge or contest of the validity of the Commission's actions, (3) to a determination by the Commission as to whether Respondent failed to comply with CPSA and the underlying regulations, (4) to a statement of findings of fact and conclusions of law and (5) to any claims under the Equal Access to Justice Act.
32. Upon provisional acceptance of this Agreement by the Commission, this Agreement shall be placed on the public record and shall be published in the
33. The Commission may publicize the terms of this Settlement Agreement and Order upon provisional acceptance of this Agreement by the Commission.
34. HB/PS's full and timely payment to the United States Treasury of a civil penalty in the amount of one million two hundred thousand dollars ($1,200,000) resolves the allegations in paragraphs 4-23 above with respect to (a) HB/PS, (b) any HB/PS parent, subsidiary, affiliate, division, or related entity; (c) any shareholder, director, officer, employee, agent or attorney of any entity referenced in (a) or (b) above; and (d) any successor, heir, or assign of any entity referenced in (a), (b), or (c) above.
35. The Commission's Order in this matter is issued under the provisions of the CPSA, 15 U.S.C. 2051-2084. Violation of this Order may subject Respondent to appropriate legal action.
36. This Settlement Agreement may be used in interpreting the Order. Agreements, understandings, representations, or interpretations apart from those contained in this Settlement Agreement and Order may not be used to vary or contradict its terms.
37. The provisions of this Settlement Agreement and Order shall apply to Respondent, its parent, and each of their successors and assigns.
Dated: March 24, 2005.
Dated: March 28, 2005.
Upon consideration of the Settlement Agreement between Respondent Hamilton Beach/Proctor-Silex, Inc., and the staff of the Consumer Product Safety Commission, and the Commission having jurisdiction over the subject matter and over Hamilton Beach/Proctor-Silex, Inc., and it appearing that the Settlement Agreement and Order is in the public interest, it is Ordered that the Settlement Agreement be, and hereby is, accepted and it is Further ordered that Hamilton Beach/Proctor-Silex, Inc., shall pay the United States Treasury a civil penalty in the amount of one million, two-hundred thousand and 00/100 dollars ($1,200,000.00), payable within twenty (20) days of the service of the Final Order upon Hamilton Beach/Proctor-Silex, Inc. Upon the failure of Hamilton Beach/Proctor-Silex, Inc., to make payment or upon the making of a late payment by Respondent (a) the entire amount of the civil penalty shall be due and payable, and (b) interest on the outstanding balance shall accrue and paid at the federal legal rate of interest under the provisions of 28 U.S.C. 1961(a) and (b).
Provisionally accepted and Provisional Order issued on the 30th day of March 2005.
By order of the Commission.
Finally accepted and Final Order issued on the __day of 2005.
By order of the Commission.
Department of Defense.
Notice; Defense Task Force on Sexual Harassment and Violence at the Military Service Academies—open meeting.
Pursuant to the Federal Advisory Committee Act (FACA), Public Law 96-463, notice is hereby given that the Defense Task Force on Sexual Harassment and Violence at the Military Service Academies will hold an open meeting at the Courtyard Marriott, 2700 Eisenhower Avenue, Alexandria, Virginia 22314, on April 20, 2005, from 1 p.m. to 4 p.m. Be advised that the Task Force determined on March 31, 2005, that this additional meeting is necessary to ensure the report to the Secretary of Defense is delivered within the Task Force's scheduled deadline.
April 20, 2005 1 p.m.-4 p.m.
Any member of the public wishing further information concerning this meeting or wishing to submit comments must contact: Mr. William Harkey, Public Affairs Officer, Task Force on Sexual Harassment and Violence at the Military Service Academies, 2850 Eisenhower Ave, Suite 100, Alexandria, Virginia 22314; telephone: (703) 325-6640; DSN# 221-6640; Fax: (703) 325-6710/6711;
Interested persons may submit a written statement for consideration by the Task Force and make an oral presentation of such. Persons desiring to make an oral presentation or submit a written statement to the Committee must notify the point of contact listed above no later than 5 p.m., April 15, 2005. Oral presentations by members of the public will be permitted only on April 20, 2005, from 1 p.m. until 4 p.m. before the full Task Force. Presentations will be limited to ten (10) minutes each. Number of oral presentations to be made will depend on the number of requests received from members of the public
Uniformed Services University of the Health Sciences.
Notice.
(1) Approval of Minutes—February 8, 2005.
(2) Faculty Matters.
(3) Departmental Reports.
(4) Financial Report.
(5) Report—Interim President, USUHS.
(6) Report—Dean, School of Medicine.
(7) Report—Dean, Graduate School of Nursing.
(8) Approval of Degrees—School of Medicine; Graduate
School of Nursing.
(9) Comments—Chairman, Board of Regents.
(10) New Business.
May 20, 2005, 8 a.m. to 4 p.m.
Uniformed Services University of the Health Sciences, Board of Regents Conference Room (D3001), 4301 Jones Bridge Road, Bethesda, MD 20814-4799.
Barry W. Wolcott, M.D., Executive Secretary, Board of Regents, (301) 295-3681.
Department of Education.
Notice inviting letters of application for participation in the Quality Assurance Program.
The Secretary of Education invites institutions of higher education that may wish to participate in the Quality Assurance Program, under section 487A(a) of the Higher Education Act of 1965, as amended (HEA), to submit a letter of application to participate in the program.
Letters of application may be submitted any time after April 6, 2005.
Institutions wishing to apply to participate in the Quality Assurance Program may do so by mailing a letter of application to Barbara Mroz, Federal Student Aid, U.S. Department of Education, 830 First Street, NE., room 84F1, Washington, DC 20202-5232 or by submitting a letter of application electronically to Barbara Mroz at:
Sharyn Hutson, Federal Student Aid, U.S. Department of Education, 830 First Street, NE., room 83G3, Washington, DC 20202-5232. Telephone: (202) 377-4379, or via e-mail:
If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-888-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
Institutions of higher education are invited to join the Department in an effort to simplify regulations and administrative processes for the Federal Student Aid (FSA) Programs authorized by Title IV of the Higher Education Act of 1965, as amended (HEA). The vision of the Quality Assurance Program, with 145 institutions currently participating, is to provide tools that help all Title IV institutions promote better service to students, compliance, and continuous improvement in program delivery. The program encourages participating institutions to develop and implement their own comprehensive systems to verify student financial aid application data, and continually assess compliance to Federal requirements.
The Secretary is authorized to provide participating institutions with regulatory flexibility for the verification of student data, and to encourage alternative approaches that improve award accuracy.
The Secretary believes that the process of continuous improvement fostered by the institutions already participating in the Quality Assurance Program has enhanced not only the accuracy of student aid awards and payments, but also the management of student aid offices and the delivery of services to students.
The mission of the Quality Assurance Program is to help schools attain, sustain, and advance exceptional student aid delivery and service excellence. For the past 19 years, the program has done that by providing participating institutions with the flexibility to design an institutional verification program that more directly focuses on their own population segments. It has also helped them target areas of administration that affect award accuracy or that may leave the institution vulnerable to potential liabilities.
The Quality Assurance Program has given institutions the tools and techniques to assess, measure, analyze, correct and prevent problems, and has provided them with data on which to base their decisions for solving problems and addressing verification issues.
The Secretary encourages institutions participating in the Quality Assurance Program to evaluate their student aid or verification policies and procedures and adopt improvements in those procedures. Institutions measure performance and test the effectiveness of their verification program by using the Department's ISIR Analysis Tool. The ISIR Analysis Tool is a web-based software product that provides Financial Aid Administrators with an in-depth analysis of their applicant population. It allows them to see not only which FAFSA elements changed when verified, but also what impact these changes have upon the Expected Family Contribution (EFC) and aid eligibility. This analysis helps Financial
The Quality Assurance Program also helps institutions make improvements beyond verification and basic compliance. By using the FSA Assessments, schools can set goals for continuous improvement in all areas of financial aid delivery. One key benefit of the program is the partnership between the Department and the participating institutions.
Both parties become engaged in promoting continuous improvement in the administration and delivery of the student financial assistance programs, thereby enhancing service to students.
The Secretary invites institutions of higher education that administer one or more Title IV programs to submit a letter of application to participate in the Quality Assurance Program. Institutions that currently participate in the program may continue to do so without submitting a new letter of application. The Secretary will review the letter of application, which should reflect the institution's commitment to the goals of the Quality Assurance Program, as determined by the Secretary. The letter of application should address the following goals in detail:
• Attain and sustain compliance and continuous improvement in program delivery, and better service to students;
• Improve the accuracy of institutional verification programs;
• Increase institutional flexibility in managing student aid funds, while maintaining accountability for the proper use of those funds; and
• Encourage the development of innovative management approaches that advance quality.
The Department will screen prospective participants to determine if the institution meets general Title IV eligibility requirements and has a demonstrated record of program compliance. The Secretary may also consider the institution's performance with regard to financial responsibility, administrative capability, program review findings, audit findings, etc. as outlined in the regulations and in the Federal Student Aid Handbook.
You may view this document, as well as all other documents of this Department published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at (202) 512-1530.
The official version of this document is the document published in the
The Department is not bound by any estimates in this notice.
This priority is:
Increasing student access to quality mental health care by developing innovative approaches to link local school systems with the local mental health system. A program funded under this absolute priority must include all of the following activities:
(1) Enhancing, improving, or developing collaborative efforts between school-based service systems and mental health service systems to provide, enhance, or improve prevention, diagnosis, and treatment services to students.
(2) Enhancing the availability of crisis intervention services, appropriate referrals for students potentially in need of mental health services, and ongoing mental health services.
(3) Providing training for the school personnel and mental health professionals who will participate in the program.
(4) Providing technical assistance and consultation to school systems and mental health agencies and families participating in the program.
(5) Providing linguistically appropriate and culturally competent services.
(6) Evaluating the effectiveness of the program in increasing student access to quality mental health services, and making recommendations to the Secretary about sustainability of the program.
(a)
(b)
(1) The designation of a lead agency that will direct, in compliance with section 5541(e) of the ESEA, the establishment of the grantee's final interagency agreement among LEAs, juvenile justice authorities, mental health agencies, and other relevant entities in the State, in collaboration with local entities and parents and guardians of students;
(2) Commitment of the parties in the applicant's preliminary IAA to participate in the development of the final interagency agreement described in (1). The final interagency agreement must specify, with regard to each participating agency, authority, or entity—
• Financial responsibility for the services that it will provide as part of the program;
• Conditions and terms of responsibility for the services, including quality, accountability, and coordination of services;
• Conditions and terms of reimbursement with and among the other agencies, authorities, or entities that are parties to the interagency agreement, including procedures for dispute resolution; and
• Policies and procedures to ensure appropriate parental or caregiver consent for any planned services, pursuant to state or local laws or requirements.
(3) A statement that the parties in the preliminary IAA will complete the required final IAA and submit it to the U.S. Department of Education no later than 12 months after the award date.
(4) An assurance that:
• Persons providing services under the grant will be adequately trained to provide such services;
• Services provided under the grant will be consistent with the six requirements in the absolute priority;
• Teachers, principal administrators, and other school personnel will be made aware of the program; and
• Parents of students participating in services under the program will be involved in the design and implementation of the services.
Applications that fail to include the required preliminary IAA (with required content and signatures) will not be submitted for peer review.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The Department is not bound by any estimates in this notice.
1.
2.
1.
You may also contact ED Pubs at its Web site:
If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA number 84.215 M.
You may also download the application from the Department of Education's Web site at:
Individuals with disabilities may obtain a copy of the application package in an alternative format (
The public can also obtain applications directly from the program
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
2.
3.
Applications for grants under this competition may be submitted electronically using the Electronic Grant Application System (e-Application) accessible through the Department's e-Grants system, or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application electronically, or by mail or hand delivery, please refer to section IV.6.
We do not consider an application that does not comply with the deadline requirements. Deadline for Intergovernmental Review: July 18, 2005.
4.
5.
6.
a.
If you choose to submit your application to us electronically, you must use e-Application available through the Department's e-Grants system, accessible through the e-Grants portal page at:
While completing your electronic application, you will be entering data online that will be saved into a database. You may not e-mail an electronic copy of a grant application to us.
Please note the following:
• Your participation in e-Application is voluntary.
• You must complete the electronic submission of your grant application by 4:30 p.m., Eastern Time, on the application deadline date. The e-Application system will not accept an application for this competition after 4:30 p.m., Eastern Time, on the application deadline date. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the application process.
• The regular hours of operation of the e-Grants Web site are 6 a.m. Monday until 7 p.m. Wednesday; and 6 a.m. Thursday until midnight Saturday, Eastern Time. Please note that the system is unavailable on Sundays, and between 7 p.m. on Wednesdays and 6 a.m. on Thursdays, Eastern Time, for maintenance. Any modifications to these hours are posted on the e-Grants Web site.
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you submit your application in paper format.
• You must submit all documents electronically, including the Application for Federal Education Assistance (ED 424), Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• Any narrative sections of your application should be attached as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format.
• Your electronic application must comply with any page limit requirements described in this notice.
• Prior to submitting your electronic application, you may wish to print a copy of it for your records.
• After you electronically submit your application, you will receive an automatic acknowledgement that will include a PR/Award number (an identifying number unique to your application).
• Within three working days after submitting your electronic application, fax a signed copy of the ED 424 to the Application Control Center after following these steps:
(1) Print ED 424 from e-Application.
(2) The applicant's Authorizing Representative must sign this form.
(3) Place the PR/Award number in the upper right hand corner of the hard-copy signature page of the ED 424.
(4) Fax the signed ED 424 to the Application Control Center at (202) 245-6272.
• We may request that you provide us original signatures on other forms at a later date.
(1) You are a registered user of e-Application and you have initiated an electronic application for this competition; and
(2) (a) The e-Application system is unavailable for 60 minutes or more between the hours of 8:30 a.m. and 3:30 p.m., Eastern Time, on the application deadline date; or
(b) The e-Application system is unavailable for any period of time between 3:30 p.m. and 4:30 p.m., Eastern Time, on the application deadline date.
We must acknowledge and confirm these periods of unavailability before granting you an extension. To request this extension or to confirm our acknowledgement of any system unavailability, you may contact either (1) the person listed elsewhere in this notice under
Extensions referred to in this section apply only to the unavailability of the Department's e-Application system. If the e-Application system is available, and, for any reason, you are unable to submit your application electronically or you do not receive an automatic acknowledgement of your submission, you may submit your application in paper format by mail or hand delivery in accordance with the instructions in this notice.
b.
If you submit your application in paper format by mail (through the U.S. Postal Service or a commercial carrier), you must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
or
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark,
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service,
(3) A dated shipping label, invoice, or receipt from a commercial carrier, or
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark, or
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you submit your application in paper format by hand delivery, you (or a courier service) must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.215M), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Eastern Time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 4 of the ED 424 the CFDA number—and suffix letter, if any—of the competition under which you are submitting your application.
(2) The Application Control Center will mail a grant application receipt acknowledgment to you. If you do not receive the grant application receipt acknowledgment within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
a. The percentage of schools served by the grant that have comprehensive, detailed linkage protocols in place will increase; and
b. The percentage of school personnel served by the grant who are trained to make appropriate referrals to mental health services will increase.
These two measures constitute the Department's indicators of success for this program. Consequently, applicants for a grant under this program are advised to give careful consideration to these two outcomes in conceptualizing the approach and evaluation of their proposed project. If funded, applicants will be asked to collect and report data in their performance and final reports about progress toward these goals. The Secretary will also use this information to respond to the evaluation requirements concerning this program established in Section 5541(f) of the ESEA.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice of proposed priority.
The Assistant Secretary for Special Education and Rehabilitative Services proposes a priority for the National Institute on Disability and Rehabilitation Research's (NIDRR) Disability and Rehabilitation Research Projects and Centers Program, Disability and Rehabilitation Research Projects (DRRP). This priority may be used for competitions in fiscal year (FY) 2005 and later years. We take this action to focus research attention on areas of national need. We intend this priority to improve rehabilitation services and outcomes for individuals with disabilities.
We must receive your comments on or before May 6, 2005.
Address all comments about this proposed priority to Donna Nangle, U.S. Department of Education, 400 Maryland Avenue, SW., Room 6030, Potomac Center Plaza, Washington, DC 20204-2700. If you prefer to send your comments through the Internet, use the following address:
Donna Nangle. Telephone: (202) 245-7462.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
We invite you to submit comments regarding this proposed priority.
We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from this proposed priority. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public comments about this proposed priority in room 6030, 550 12th Street, SW., Potomac Center Plaza, Washington, DC, between the hours of 8:30 a.m. and 4 p.m., eastern time, Monday through Friday of each week except Federal holidays.
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this proposed priority. If you want to schedule an appointment for this type of aid, please contact the person listed under
We will announce the final priority in a notice in the
This notice does
NIDRR supports the goals of President Bush's New Freedom Initiative (NFI). The NFI can be accessed on the Internet at the following site:
The proposed priority is in concert with NIDRR's Long-Range Plan (Plan). The Plan is comprehensive and integrates many issues relating to disability and rehabilitation research topics. While applicants will find many sections throughout the Plan that support potential research to be conducted under the proposed priority, the specific reference is in Chapter 3, Employment Outcomes. The Plan can be accessed on the Internet at the following site:
Through the implementation of the NFI and the Plan, NIDRR seeks to: (1) Improve the quality and utility of disability and rehabilitation research; (2) foster an exchange of expertise, information, and training to facilitate the advancement of knowledge and understanding of the unique needs of traditionally underserved populations; (3) determine best strategies and programs to improve rehabilitation outcomes for underserved populations; (4) identify research gaps; (5) identify mechanisms of integrating research and practice; and (6) disseminate findings.
The purpose of the DRRP Program is to plan and conduct research, demonstration projects, training, and related activities that help to maximize the full inclusion and integration of individuals with disabilities into society and to improve the effectiveness of services authorized under the Rehabilitation Act of 1973, as amended (the Act). An applicant for assistance under this program must demonstrate in its application how it will address, in whole or in part, the needs of individuals with disabilities from minority backgrounds (34 CFR 350.40(a)). The approaches an applicant may take to meet this requirement are found in 34 CFR 350.40(b). Additional information on the DRRP program can be found at:
Despite past attempts to reduce unemployment rates for individuals with disabilities, these individuals continue to be employed at much lower rates than individuals without disabilities. The 2003 American Community Survey (U.S. Bureau of the Census,
Strategic models and approaches for employment and job placement of individuals with disabilities fall primarily into two categories: Supply-side and demand-side. In supply-side models, individuals are matched against an available supply of jobs. In demand-side employment models, the focus is on the employer and work environment (
NIDRR believes that a better understanding about market driven workforce trends could improve employment outcomes for individuals with disabilities and inform employment activities so that the potential workforce applicant pool is better prepared to effectively meet future or changing needs and requirements of the job market.
The supply-side and demand-side models for job placement are among the most frequently discussed in the research literature. However, there are a limited number of studies that describe the differences between the two models. Similarly, the literature that does discuss the differences between the two models provides limited insight about factors that influence the employment rate for persons with disabilities. Additionally, studies identify but provide limited understanding about the following critical issues and concerns relating to demand-side models: (1) Changing structure of the workforce and the impact of downsizing; (2) increasing use of on-call workers, temporary help agencies, and independent contractors; (3) rapid advances in technology requiring the need for highly educated, highly skilled workers; (4) employer perceptions, beliefs, and attitudes regarding the employment of individuals with disabilities; (5) employer knowledge and use of incentives for hiring individuals with disabilities; (6) the effect of labor market demand policies and economic factors on employment outcomes for individuals with disabilities; (7) employer-based hiring practices that influence employment outcomes and employer understanding of the implications of employment practices for individuals with disabilities; and (8) predictors of return to work and workforce participation. This priority seeks to improve our understanding of demand-side placement models and strategies and employment outcomes from a variety of perspectives.
The Assistant Secretary proposes a priority for one DRRP, which must focus its research on demand-side employment placement models. Studies conducted under this priority must support rigorous, empirically based research designed to develop or identify and evaluate demand-side employment placement models, methods, and measures.
To meet this priority, research activities and studies must identify or develop, demonstrate, and evaluate methods, models, and measures leading to the following:
(1) Psychometrically sound measures for determining employer-focused employment needs;
(2) Types of employment interventions that effectively address employer issues, including methods for increasing employer and business entity participation in the development of strategies for improving employment outcomes for individuals with disabilities;
(3) Analysis comparing the effectiveness of the demand-side model and the supply-side model and identification of the predictors of workforce participation for specific populations of individuals with disabilities using both models; and
(4) Effective measures for evaluating the role of demand-side models in relation to employment outcomes, employment data, individual and systems level outcomes, and trends across workplace environments and employment systems, including measures that involve macroeconomic, legislative, or policy issues that potentially influence employment outcomes.
This notice of proposed priority has been reviewed in accordance with Executive Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the notice of proposed priority are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this notice of proposed priority, we have determined that the benefits of the proposed priority justify the costs.
The potential costs associated with this proposed priority are minimal while the benefits are significant. Grantees may anticipate costs associated with completing the application process in terms of staff time, copying, and mailing or delivery. The use of e-Application technology reduces mailing and copying costs significantly.
The benefits of the DRRP Program have been well established over the years in that similar projects have been completed successfully. This proposed priority will generate new knowledge through the research to be conducted under the proposed priority.
Another benefit of this proposed priority will be the establishment of a new DRRP that supports the President's NFI and will support improvements in the lives and potential employment outcomes of persons with disabilities.
You may view this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
29 U.S.C. 762(g) and 764(a).
The Department is not bound by any estimates in this notice.
This priority is:
(a) Meet developmental and functional goals, and challenging academic achievement goals that have been established for all children; and
(b) Be prepared to lead productive, independent adult lives, to the maximum extent possible.
In addition, a purpose of this priority is to ensure that children with disabilities and their parents receive training and information on their rights, responsibilities, and protections under IDEA in order to develop the skills necessary to cooperatively and effectively participate in planning and decision making relating to early intervention, educational, and transitional services.
A PTI Center shall—
(a) Provide training and information that meets the needs of parents of children with disabilities living in the area served by the PTI Center, particularly underserved parents and parents of children who may be inappropriately identified as having a disability when the child may not have a disability, to enable their children with disabilities to—
(1) Meet developmental and functional goals and challenging academic achievement goals established for all children; and
(2) Be prepared to lead productive independent adult lives, to the maximum extent possible;
(b) Ensure that the training and information provided meets the needs of low-income parents and parents of limited English proficient children;
(c) Assist parents in resolving disputes in the most expeditious and effective way possible, including encouraging the use, and explaining the benefits, of alternative methods of dispute resolution, such as the mediation process described in section 615(e) of IDEA;
(d) Assist parents and students with disabilities to understand their rights and responsibilities under IDEA, including those under section 615(m) of IDEA upon the student's reaching the age of majority (as appropriate under State law);
(e) Assist parents to understand the availability of, and how to effectively use, procedural safeguards under IDEA, including the resolution session described in section 615(e) of IDEA;
(f) Assist parents in understanding, preparing for, and participating in, the process described in section 615(f)(1)(B) of IDEA;
(g) Serve the parents of infants, toddlers, and children, from ages birth through 26, with the full range of disabilities described in section 602(3) of IDEA;
(h) Familiarize themselves with the provision of special education and related services in the areas they serve to help ensure that children with disabilities are receiving appropriate services;
(i) Assist parents to—
(1) Better understand the nature of their children's disabilities and their educational, developmental, and transitional needs;
(2) Communicate effectively and work collaboratively with personnel responsible for providing special education, early intervention services, transition services, and related services;
(3) Participate in decision making processes regarding participation in State and local assessments and the development of individualized education programs and individualized family service plans;
(4) Obtain appropriate information about the range, type and quality of (A) options, programs, services, technologies, practices and interventions that are based on scientifically based research, to the extent practicable, and (B) resources available to assist children with disabilities and their families in school and at home, including information available through the Office of Special Education Programs' (OSEP) technical assistance network and Communities of Practice;
(5) Understand the provisions of IDEA for the education of, and the provision of early intervention services to, children with disabilities;
(6) Participate in activities at the school level that benefit their children; and
(7) Participate in school reform activities;
(j) In States where the State elects to contract with the parent training and information center, contract with the State educational agencies to provide, consistent with subparagraphs (B) and (D) of section 615(e)(2) of IDEA, individuals who meet with parents to explain the mediation process to the parents;
(k) Establish cooperative partnerships with other PTI Centers in the State and Community Parent Resource Centers (CPRC) funded under section 672 of IDEA;
(l) Respond to requests from the National Technical Assistance Center (NTAC) and Regional Parent Technical Assistance Centers (PTACs) and use the technical assistance services of the NTAC and PTACs in order to serve the families of infants, toddlers, and children with disabilities as efficiently
(m) Network with appropriate clearinghouses, including organizations conducting national dissemination activities under section 663 of IDEA, the Institute of Education Sciences, and with other national, State, and local organizations and agencies, such as protection and advocacy agencies, that serve parents and families of children with the full range of disabilities described in section 602(3) of IDEA;
(n) Annually report to the Assistant Secretary on—
(1) The number and demographics of parents to whom the PTI Center provided information and training in the most recently concluded fiscal year,
(2) The effectiveness of strategies used to reach and serve parents, including underserved parents of children with disabilities by providing evidence of how those parents were served effectively; and
(3) The number of parents served who have resolved disputes through alternative methods of dispute resolution;
(o) If there is more than one PTI Center in a particular State, coordinate its activities with the other center or centers to ensure the most effective assistance to parents in that State;
(p) Budget for a two-day Project Directors' meeting in Washington, DC during each year of the project. In addition, a project's budget must include funds to attend a regional Project Directors' meeting to be held each year of the project;
(q) If the PTI Center maintains a Web site, include relevant information and documents in a form that meets a government or industry-recognized standard for accessibility;
(r) Prior to developing any new product, whether paper or electronic, submit for approval a proposal describing the content and purpose of the product to the document review board of OSEP's Dissemination Center;
(s) In collaboration with OSEP and the NTAC, participate in an annual collection of program data for PTI Centers and CPRCs; and
(t) Identify with specificity in its application the special efforts it will make to—
(1) Ensure that the needs for training and information of underserved parents of children with disabilities in the area to be served are effectively met; and
(2) Work with community based organizations, including community based organizations that work with low-income parents and parents of limited English proficient children.
The Department is not bound by any estimates in this notice.
The Assistant Secretary took into consideration current funding levels and population distribution when determining the award amounts for grants under this competition.
In the following States, one award may be made for up to the amounts listed in the chart to a qualified applicant for a PTI Center to serve the entire State: Hawaii, Idaho, Louisiana, Mississippi, New Hampshire, North Carolina, Oklahoma, Rhode Island, Tennessee, and West Virginia.
To ensure maximum coverage for this competition, the Assistant Secretary has adopted regional designations established by Pennsylvania and has identified corresponding maximum award amounts. Regions were identified in Pennsylvania by utilizing the educational services breakdown operational within the State. Any applicant that applies for grants for more than one region must complete a separate application for each region. In Pennsylvania, one award will be made in the following amounts to a qualified applicant for a PTI Center to serve each identified Region:
Region 1—$382,000
Region 2—$254,650
1.
(a) Has a board of directors, the parent and professional members of which are broadly representative of the population to be served (including low-income parents and parents of limited English proficient children), and the majority of whom are parents of children with disabilities ages birth through 26; and that includes individuals with disabilities and individuals working in the fields of special education, related services, and early intervention; and
(b) Has as its mission serving families of children with disabilities who are ages birth through 26, and have the full range of disabilities described in section 602(3) of IDEA.
2.
3.
(b) Applicants and grant recipients funded under this notice must involve individuals with disabilities or parents of individuals with disabilities ages birth through 26 in planning, implementing, and evaluating the projects (see section 682(a)(1)(A) of IDEA).
1.
You may also contact ED Pubs at its Web site:
If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA number 84.328M.
Individuals with disabilities may obtain a copy of the application package in an alternative format (
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, the references, or the letters of support. However, you must include all of the application narrative in Part III.
We will reject your application if—
• You apply these standards and exceed the page limit; or
• You apply other standards and exceed the equivalent of the page limit.
3.
Applications for grants under this competition may be submitted electronically using the Grants.gov Apply site (Grants.gov), or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application electronically, or by mail or hand delivery, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements. Deadline for Intergovernmental Review: July 25, 2005.
4.
5.
6.
a.
We have been accepting applications electronically through the Department's e-Application system since FY 2000. In order to expand on those efforts and comply with the President's Management Agenda, we are continuing to participate as a partner in the new governmentwide Grants.gov Apply site in FY 2005. Parent Training and Information Centers-CFDA Number 84.328M is one of the competitions included in this project.
If you choose to submit your application electronically, you must use the Grants.gov Apply site (Grants.gov). Through this site, you will be able to download a copy of the application package, complete it offline, and then upload and submit your application. You may not e-mail an electronic copy of a grant application to us. We request your participation in Grants.gov.
You may access the electronic grant application for Parent Training and Information Centers-CFDA Number 84.328M competition at:
Please note the following:
• Your participation in Grants.gov is voluntary.
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are time and date stamped. Your application must be fully uploaded and submitted with a date/time received by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. We will not consider your application if it was received by the Grants.gov system later than 4:30 p.m. on the application deadline date. When we retrieve your
• If you experience technical difficulties on the application deadline date and are unable to meet the 4:30 p.m., Washington, DC time deadline, print out your application and follow the instructions in this notice for the submission of paper applications by mail or hand delivery.
• The amount of time it can take to upload an application will vary depending on a variety of factors including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the application process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that your application is submitted timely to the Grants.gov system.
• To use Grants.gov, you, as the applicant, must have a D-U-N-S Number and register in the Central Contractor Registry (CCR). You should allow a minimum of five business days to complete the CCR registration.
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you submit your application in paper format.
• You may submit all documents electronically, including all information typically included on the Application for Federal Education Assistance (ED 424), Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Any narrative sections of your application should be attached as files in a .DOC (document), .RTF (rich text) or .PDF (portable document) format.
• Your electronic application must comply with any page limit requirements described in this notice.
• After you electronically submit your application, you will receive an automatic acknowledgement from Grants.gov that contains a Grants.gov tracking number. The Department will retrieve your application from Grants.gov and send you a second confirmation by e-mail that will include a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
b.
If you submit your application in paper format by mail (through the U.S. Postal Service or a commercial carrier), you must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark,
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service,
(3) A dated shipping label, invoice, or receipt from a commercial carrier, or
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark, or
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you submit your application in paper format by hand delivery, you (or a courier service) must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.328M), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260. The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 4 of the ED 424 the CFDA number—and suffix letter, if any—of the competition under which you are submitting your application.
(2) The Application Control Center will mail a grant application receipt acknowledgment to you. If you do not receive the grant application receipt acknowledgment within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
Once the measures are developed, we will notify grantees if they will be required to provide any information related to these measures.
Grantees will also be required to report information on their projects' performance in annual reports to the Department (34 CFR 75.590).
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
The Department is not bound by any estimates in this notice.
This priority is:
(a) Meet developmental and functional goals, and challenging academic achievement goals that have been established for all children; and
(b) Be prepared to lead productive, independent adult lives, to the maximum extent possible.
In addition, a purpose of this priority is to ensure that children with disabilities and their parents receive training and information on their rights, responsibilities, and protections under IDEA in order to develop the skills necessary to cooperatively and effectively participate in planning and decisionmaking relating to early intervention, educational, and transitional services.
Each community parent resource center assisted under this priority shall—
(a) Provide training and information that meets the training and information needs of parents of children with disabilities within the targeted community proposed to be served by the center, particularly underserved parents and parents of children who may be inappropriately identified as having disabilities;
For purposes of this priority, “community to be served” refers to a community whose members experience significant isolation from available sources of information and support as a result of cultural, economic, linguistic, or other circumstances deemed appropriate by the Secretary.
(b) Carry out the activities required of parent training and information centers under section 671(b) of IDEA, which are listed as follows:
(1) Serve the parents of infants, toddlers, and children, from ages birth through 26, with the full range of disabilities described in section 602(3) of IDEA;
(2) Ensure that the training and information provided meets the needs of low-income parents and parents of limited English proficient children;
(3) Assist parents to—
(A) Better understand the nature of their children's disabilities and their educational, developmental, and transitional needs;
(B) Communicate effectively and work collaboratively with personnel responsible for providing special education, early intervention services, transition services, and related services;
(C) Participate in decisionmaking processes and the development of individualized education programs under Part B of IDEA and individualized family service plans under Part C of IDEA;
(D) Obtain appropriate information about the range, type, and quality of—
(i) Options, programs, services, technologies, practices and interventions based on scientifically based research, to the extent practicable, and
(ii) Resources available to assist children with disabilities and their families in school and at home;
(E) Understand the provisions of IDEA for the education of, and the provision of early intervention services to, children with disabilities;
(F) Participate in activities at the school level that benefit their children; and
(G) Participate in school reform activities;
(4) In States where the State elects to contract with the parent training and information center, contract with State educational agencies to provide, consistent with subparagraphs (B) and (D) of section 615(e)(2) of IDEA, individuals who meet with parents to explain the mediation process to the parents;
(5) Assist parents in resolving disputes in the most expeditious and effective way possible, including encouraging the use, and explaining the benefits, of alternative methods of dispute resolution, such as the mediation process described in section 615(e) of IDEA;
(6) Assist parents and students with disabilities to understand their rights and responsibilities under IDEA, including those under section 615(m) of IDEA upon the student's reaching the age of majority (as appropriate under State law);
(7) Assist parents to understand the availability of, and how to effectively use, procedural safeguards under IDEA, including the resolution session described in section 615(e) of IDEA;
(8) Assist parents in understanding, preparing for, and participating in, the process described in section 615(f)(1)(B) of IDEA;
(c) Establish cooperative partnerships with the parent training and information centers funded in the State under section 671 of IDEA;
(d) Respond to requests from the National Technical Assistance Center (NTAC) and Regional Parent Technical Assistance Centers (PTACs) and use the technical assistance services of the NTAC and PTACs in order to serve the families of infants, toddlers, and children with disabilities as efficiently as possible. PTACs are charged with assisting parent centers with administrative and programmatic issues;
(e) Be designed to meet the specific needs of families who experience significant isolation from available sources of information and support;
(f) Annually report to the Department on—
(1) The number and demographics of parents to whom it provided information and training in the most recently concluded fiscal year, including demographic information about those parents served, and additional information regarding the unique needs and levels of service provided; and
(2) The effectiveness of strategies used to reach and serve parents, including underserved parents of children with disabilities, by providing evidence of how those parents were served effectively;
(g) In collaboration with OSEP and the NTAC, participate in an annual collection of program data for the community parent resource centers and the parent training and information centers;
(h) Prior to developing any new product, whether paper or electronic, submit for approval a proposal describing the content and purpose of the product to the document review board of OSEP's Dissemination Center for approval;
(i) Budget for a two-day Project Directors' meeting in Washington, DC during each year of the project. In addition, a project's budget must include funds to attend a Regional Project Directors meeting to be held each year of the project;
(j) If the community parent resource center maintains a Web site, include relevant information and documents in a form that meets a government or industry-recognized standard for accessibility.
This priority is:
We will award five points to an application that proposes to provide services to one or more Empowerment Zones, Enterprise Communities or Renewal Communities that are designated within the areas served by the center. (A list of areas that have been selected as Empowerment Zones, Enterprise Communities, or Renewal Communities can be found at
(1)(i) Design a program that includes special activities focused on the unique needs of one or more Empowerment Zones, Enterprise Communities, or Renewal Communities; or
(ii) Devote a substantial portion of program resources to providing services within, or meeting the needs of residents of these zones and communities;
(2) As appropriate, contribute to the strategic plan of the Empowerment Zones, Enterprise Communities, or Renewal Communities and become an integral component of the Empowerment Zone, Enterprise Community, or Renewal Community activities.
Therefore, for purposes of this competitive preference priority, applicants can be awarded up to a total of five points in addition to those awarded under the selection criteria for this competition (
The Department is not bound by any estimates in this notice.
1.
(a) Has a board of directors, the majority of whom are parents of children with disabilities ages birth through 26 from the community to be served; and
(b) Has—
(1) As its mission serving parents of children with disabilities from that community who (i) are ages birth through 26; and (ii) have the full ranges of disabilities as defined in section 602(3) of IDEA.
Section 671(a)(2) of IDEA defines a “parent organization” as a private nonprofit organization (other than an institution of higher education) that:
(a) Has a board of directors—
(1) The majority of whom are parents of children with disabilities ages birth through 26;
(2) That includes—
(i) Individuals working in the fields of special education, related services, and early intervention; and
(ii) Individuals with disabilities; and
(iii) The parent and professional members of which are broadly representative of the population to be served including low-income parents and parents of limited English proficient children; and
(b) Has as its mission serving families of children with disabilities who—
(1) Are ages birth through 26; and
(2) Have the full range of disabilities described in section 602(3) of IDEA.
2.
3.
(b) Applicants and grant recipients funded under this competition must involve individuals with disabilities or parents of individuals with disabilities ages birth through 26 in planning, implementing, and evaluating the projects (
1.
You may also contact ED Pubs at its Web site:
If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA number 84.328C.
Individuals with disabilities may obtain a copy of the application package in an alternative format (
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, the references, or the letters of support. However, you must include all of the application narrative in Part III.
We will reject your application if—
• You apply these standards and exceed the page limit; or
• You apply other standards and exceed the equivalent of the page limit.
3.
Applications for grants under this competition may be submitted electronically using the Grants.gov Apply site (Grants.gov), or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application electronically, or by mail or hand delivery, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
Deadline for Intergovernmental Review: July 19, 2005.
4.
5.
6.
a.
We have been accepting applications electronically through the Department's e-Application system since FY 2000. In order to expand on those efforts and comply with the President's Management Agenda, we are continuing to participate as a partner in the new government-wide Grants.gov Apply site in FY 2005. The Community Parent Resource Centers—CFDA Number 84.328C is one of the competitions included in this project.
If you choose to submit your application electronically, you must use the Grants.gov Apply site (Grants.gov). Through this site, you will be able to download a copy of the application package, complete it offline, and then upload and submit your application. You may not e-mail an electronic copy of a grant application to us. We request your participation in Grants.gov.
You may access the electronic grant application for the Community Parent Resource Centers—CFDA Number 84.328C competition at:
Please note the following:
• Your participation in Grants.gov is voluntary.
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are time and date stamped. Your application must be fully uploaded and submitted with a date/time received by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. We will not consider your application if it was received by the Grants.gov system later than 4:30 p.m. on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was submitted after 4:30 p.m. on the application deadline date.
• If you experience technical difficulties on the application deadline date and are unable to meet the 4:30 p.m., Washington, DC time, deadline, print out your application and follow the instructions in this notice for the submission of paper applications by mail or hand delivery.
• The amount of time it can take to upload an application will vary depending on a variety of factors including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the application process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that your application is submitted timely to the Grants.gov system.
• To use Grants.gov, you, as the applicant, must have a D-U-N-S Number and register in the Central Contractor Registry (CCR). You should allow a minimum of five business days to complete the CCR registration.
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you submit your application in paper format.
• You may submit all documents electronically, including all information typically included on the Application for Federal Education Assistance (ED 424), Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Any narrative sections of your application should be attached as files in a .DOC (document), .RTF (rich text) or .PDF (portable document) format.
• Your electronic application must comply with any page limit requirements described in this notice.
• After you electronically submit your application, you will receive an automatic acknowledgement from Grants.gov that contains a Grants.gov tracking number. The Department will retrieve your application from Grants.gov and send you a second confirmation by e-mail that will include a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
b.
If you submit your application in paper format by mail (through the U.S. Postal Service or a commercial carrier), you must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark,
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service,
(3) A dated shipping label, invoice, or receipt from a commercial carrier, or
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark, or
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you submit your application in paper format by hand delivery, you (or a courier service) must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.328C), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 4 of the ED 424 the CFDA number—and suffix letter, if any—of the competition under which you are submitting your application.
(2) The Application Control Center will mail a grant application receipt acknowledgment to you. If you do not receive the grant application receipt acknowledgment within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
Once the measures are developed, we will notify grantees if they will be required to provide any information related to these measures.
Grantees will also be required to report information on their projects' performance in annual reports to the Department (34 CFR 75.590).
Lisa Gorove, U.S. Department of Education, 400 Maryland Avenue, SW., room 4056, Potomac Center Plaza, Washington, DC 20202-2550. Telephone: (202) 245-7357.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
United States Election Assistance Commission.
Notice of public meeting agenda.
Tuesday, April 26, 2005, 10 a.m.-11:30 a.m.
Massachusetts Institute of Technology (MIT), Bartos Theater, 20 Ames Street (lower level), Cambridge, MA 02142-1308. (Massachusetts Bay Transit Station Stop: Kendall Square)
The Commission will receive reports on the following: Title II Requirements Payments Update and Other Administrative Matters. The Commission will receive presentations on the following: Technical Guidelines Development Committee (TGDC) Recommendations and Guidelines Adoption Process.
Bryan Whitener, Telephone: (202) 566-3100.
United States Election Assistance Commission.
Notice of public meeting for the Technical Guidelines Development Committee.
Wednesday April 20, 2005, 9 a.m. to 5 p.m. and Thursday, April 21, 2005, 9 a.m. to 5 p.m.
National Institute of Standards and Technology, 100 Bureau Drive, Building 101, Gaithersburg, Maryland 20899-8900.
This meeting will be open to the public. There is no fee to attend, but due to security requirements, advance registration is required. Registration information will be available at
The Technical Guidelines Development Committee (the “Development Committee”) has scheduled a plenary meeting for April 20-21, 2005. The Committee was established to act in the public interest to assist the Executive Director of the Election Assistance Commission in the development of the voluntary voting system guidelines. The Development Committee held previous meetings on July 9, 2004; January 18 and 19, 2005; and March 9, 2005. The purpose of the fourth meeting of the Development Committee will be to review and approve a draft of the recommendations for voluntary voting system guidelines. The draft document will respond to tasks defined in resolutions passed at previous Technical Guideline Development Committee meetings.
The Technical Guidelines Development Committee (the “Development Committee”) has scheduled a plenary meeting for April 20-21, 2005. The Committee was established pursuant to 42 U.S.C. 15361, to act in the public interest to assist the Executive Director of the Election Assistance Commission in the development of the voluntary voting system guidelines. The Technical Guidelines Development Committee held their first plenary meeting on July 9, 2004. At this meeting, the Development Committee agreed to a resolution forming three working groups: (1) Human Factors & Privacy; (2) Security & Transparency; and (3) Core Requirements & Testing to gather information and public input on relevant issues. The information gathered by the working groups was analyzed at the second meeting of the Development Committee January 18 & 19, 2005. resolutions were debated and adopted by the TGDC at the January plenary session. The resolutions defined technical work tasks for NIST that will assist the TGDC in developing recommendations for voluntary voting system guidelines. At the March 9, 2005 meeting, NIST scientists presented preliminary reports on technical work tasks defined in resolutions adopted at the January plenary meeting and adopted one additional resolution. The Development Committee will review a draft document of initial recommendations for voluntary voting system guidelines at the April 20 & 21, 2005 meeting.
Allan Eustis 301-975-5099. If a member of the public would like to submit
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EMSSAB), Hanford. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Thursday, April 28, 2005, 9 a.m.-5 p.m. Friday, April 29, 2005, 8:30 a.m.-4 p.m.
Clarion Hotel & Conference Center, 1507 North 1st Street, Yakima, WA 98901. Phone number: (509) 576-4916. Fax number: (509) 578-4979.
Yvonne Sherman, Public Involvement Program Manager, Department of Energy Richland Operations Office, 825 Jadwin, MSIN A7-75, Richland, WA, 99352; phone: (509) 376-6216; Fax: (509) 376-1563.
• Hanford Advisory Board (Board) Central Plateau Decision Guidance and Barrier Considerations.
• Transuranic Waste.
• U Plant Proposed Plan.
• Fiscal Year 2006 & 2007 Budget.
• Committee Updates.
• Agency Updates.
• Adoption of Board Advise.
• Identification of Topics for September 8-9, 2005 Board Meeting.
Office of the General Counsel, Department of Energy.
Notice of intent to grant exclusive patent license.
Notice is hereby given to an intent to grant to HydroGen, llc, of Jefferson Hills, PA, an exclusive license to practice the inventions described in U.S. Patent No. 4,978,591, entitled “Corrosion-free Phosphoric Acid Fuel Cell”; U.S. Patent No. 4,732,822, entitled “Internal Electrolyte Supply System For Reliable Transport Throughout Fuel Cell Stacks”; U.S. Patent No. 4,853,301, entitled “Fuel Cell Plates With Skewed Process Channels For Uniform Distribution Of Stack Compression Load; and U.S. Patent No. 5,096,786, entitled “Integral Edge Seal For Phosphoric Acid Fuel Cells”. The inventions are owned by the United States of America, as represented by the U.S. Department of Energy (DOE).
Written comments or nonexclusive license applications are to be received at the address listed below no later than May 6, 2005.
Office of the Assistant General Counsel for Technology Transfer and Intellectual Property, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585.
John T. Lucas, Office of the Assistant General Counsel for Technology Transfer and Intellectual Property, U.S. Department of Energy, Forrestal Building, Room 6F-067, 1000 Independence Ave., SW., Washington, DC 20585; telephone (202) 586-2939.
35 U.S.C. 209 provides Federal agencies with authority to grant exclusive licenses in federally-owned inventions, if, among other things, the agency finds that the public will be served by the granting of the license. The statute requires that no exclusive license may be granted unless public notice of the intent to grant the license has been provided, and the agency has considered all comments received in response to that public notice, before the end of the comment period.
HydroGen llc, of Jefferson Hills, PA has applied for an exclusive license to practice the inventions embodied in U.S. Patent Nos. 4,978,591, 4,732,822, 4,853,301, and 5,096,786, and has plans for commercialization of the inventions.
The exclusive license will be subject to a license and other rights retained by the U.S. Government, and other terms and conditions to be negotiated. DOE intends to negotiate to grant the license, unless, within 30 days of this notice, the Assistant General Counsel for Technology Transfer and Intellectual Property, Department of Energy, Washington, DC 20585, receives in writing any of the following, together with supporting documents:
(i) A statement from any person setting forth reason why it would not be in the best interests of the United States to grant the proposed license; or
(ii) An application for a nonexclusive license to the invention in which applicant states that if already has brought the invention to practical application or is likely to bring the invention to practical application expeditiously.
The Department will review all timely written responses to this notice, and will proceed with negotiating the license if, after consideration of written responses to this notice, a finding is made that the license is in the public interest.
Take notice that on March 24, 2005, Algonquin Gas Transmission, LLC (Algonquin) tendered for filing as a part of its FERC Gas Tariff, Fifth Revised Volume No. 1, the tariff sheets listed on Appendix A, to become effective April 1, 2005.
Algonquin states that the purpose of this filing is to implement the negotiated rate transactions for transportation service to be rendered to Milford Power Limited Partnership and PPL EnergyPlus, LLC.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the 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 on March 28, 2005, Dominion Transmission, Inc. tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1A, the following tariff sheet, to become effective April 28, 2005
The purpose of this filing is to add certain recently acquired gathering lines as part of DTI's FERC Gas Tariff, Second Revised Volume No. 1A.
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 in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not 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
Dow Pipeline Company (DPL) filed an update market power analysis that also requested a revision to its market-based rate schedule to include the Commission's market behavior rules. DPL's filing also requested waiver of various Commission regulations. In particular, DPL requested that the Commission grant blanket approval under 18 CFR Part 34 of all future issuances of securities and assumptions of liability by DPL.
On March 25, 2005, the Commission granted the request for blanket approval under Part 34, subject to the following:
Any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by DPL should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure. 18 CFR 385.211, 385.214 (2004).
Notice is hereby given that the deadline for filing motions to intervene or protest is April 25, 2005.
Absent a request to be heard in opposition by the deadline above, DPL is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of DPL, compatible with the public interest, and
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of DPL's issuances of securities or assumptions of liability.
Copies of the full text of the Commission's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that on March 24, 2005, El Paso Natural Gas Company (EPNG) submitted a compliance filing pursuant to the Commission Order dated December 20, 2004 in the above listed proceedings. EPNG tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1A, the tariff sheets listed in the Appendix A to become effective May 1, 2005.
EPNG states that the tariff sheets implement the pro forma tariff sheets approved by the Commission providing for rate schedule PAL, an interruptible parking and lending service, that was included as part of the settlement filed in these proceedings.
EPNG states that copies of the filing were served on parties on the official service list in the above-captioned proceedings.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Pataula Electric Membership Corporation (Pataula) filed an application for market-based rate authority, with an accompanying rate tariff. The proposed rate tariff provides for wholesale sales of energy and capacity at market-based rates. Pataula also requested waiver of various Commission regulations. In particular, Pataula requested that the Commission grant blanket approval under 18 CFR Part 34 of all future issuances of securities and assumptions of liability by Pataula.
On March 25, 2005, pursuant to delegated authority, the Director, Division of Tariffs and Market Development—South, granted the request for blanket approval under Part 34. The Director's order also stated that the Commission would publish a separate notice in the
Notice is hereby given that the deadline for filing motions to intervene or protest is April 25, 2005.
Absent a request to be heard in opposition by the deadline above, Pataula is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Pataula, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of Pataula's issuances of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that on March 23, 2005, Tennessee Gas Pipeline Company (Tennessee), 1001 Louisiana Street, Houston, Texas 77002, tendered for filing negotiated rate arrangement.
Tennessee states that the filed negotiated rate arrangement reflects an agreement between Tennessee and Cabot Oil and Gas Marketing Corporation for transportation under rate schedule FT-A to become effective April 1, 2005.
Any person desiring to protest this filing must file in accordance with Rules 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on Tennessee.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “e-Filing” link at
This filing is accessible on-line at
Take notice that on March 24, 2005, Texas Eastern Transmission, LP (Texas Eastern) tendered for filing as part of its FERC Gas Tariff, Seventh Revised Volume No. 1, the tariff sheets listed on Appendix A to the filing, to become effective April 24, 2005. Texas Eastern states that the purpose of this filing is to modify its tariff to remove outdated provisions related to the implementation of the requirements of Order Nos. 636,
Texas Eastern states that copies of its filing have been served upon all affected customers of Texas Eastern and interested state commissions.
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 in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not 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.
On March 24, 2005, La Paloma Holding Company, LLC (HoldCo) and La Paloma Generating Company, LLC (La Paloma Gen) filed with the Commission, on behalf of themselves and the current and future owners of equity interests in HoldCo, an application requesting that the Commission grant all authorizations and approvals necessary under section 203 of the Federal Power Act for an indirect disposition of jurisdictional facilities as a result of certain proposed transfers of ownership or control of equity interests in HoldCo, and, in order to facilitate a more liquid market for the trading of such interests, grant additional authorizations approving certain categories of future transfers of ownership or control of equity interests in HoldCo. HoldCo states that it owns 100 percent of the equity interests in La Paloma Gen, which owns and operates a 1,040 megawatt electric generating facility located near McKittrick, California.
On March 24, 2005, Lake Road Holding Company, LLC (HoldCo) and Lake Road Generating Company, L.P. (Lake Road Gen) filed with the
Take notice that on March 18, 2005, Deer Park Energy Center Limited Partnership (Applicant) c/o Calpine Corporation, 717 Texas Avenue, Suite 1000, Houston, TX 77002, filed with the Commission an application for determination of exempt wholesale generator status pursuant to part 365 of the Commission's regulations. Applicant states that it is a Delaware limited partnership, and will own a nominal 950 megwatt natural gas-fired combined cycle cogeneration facility located in Deer Park, Texas.
Applicant states that copies of the application were served upon the United States Securities and Exchange Commission and Public Utility Commission of Texas.
Take notice that on March 22, 2005, Rainbow Energy Marketing Corporation (Rainbow) tendered for filing an Original Sheet No. 6 to its FERC Electric Tariff, First Revised Volume No. 1 containing the change in status reporting requirement, in compliance with the Commission's orders issued in Docket No. ER05-351-000 and 001on February 23, 2005, and in Docket No. ER94-1061-024 on March 3, 2005.
In addition, Rainbow submitted First Revised Sheet No. 1 to its FERC Electric Tariff, First Revised Volume No. 1, which would allow Rainbow to sell ancillary services at market-based rates within the Midwest Independent Transmission System Operator, Inc.
Take notice that on March 24, 2005, Morgan Stanley Capital Group Inc. (MSCG), on behalf of itself and its affiliates South Eastern Electric Development Corporation, South Eastern Generating Corporation, Naniwa Energy LLC, Power Contract Finance, L.L.C., Power Contract Financing II, L.L.C., Power Contract Financing II, Inc., MS Retail Development Corp., and Utility Contract Funding II, LLC, submitted a revised market power analysis.
MSCG states that copies of the filing were served on parties on the official service lists in the above-captioned proceedings.
Take notice that on March 24, 2005, Morgan Stanley Capital Group Inc. (MSCG) submitted an amendment to its Second Revised Rate Schedule FERC No. 1 to reflect the change-in-status reporting requirement adopted in the Commission's Order No. 652,
MSCG states that copies of the filing were served on parties on the official service list in this proceeding.
Take notice that, on March 24, 2005, South Eastern Electric Development Corporation (SEEDCO) submitted amendments to its FERC Electric Tariff, Original Volume No. 1 to reflect the change-in-status reporting requirement adopted by the Commission in Order No. 652,
SEEDCO states that copies of the filing were served on parties on the official service list in the above-captioned proceeding.
Take notice that, on March 24, 2005, Tampa Electric Company, Panda Gila River, L.P., Union Power Partners, L.P., TECO EnergySource, Inc., Commonwealth Chesapeake Company, L.L.C., TPS Dell, LLC, TPS McAdams, LLC, and TECO-PANDA Generating Company, L.P., (collectively, TECO Group) submitted for filing revisions to their respective market-based rate tariffs to include the reporting requirement for changes in status adopted in
The TECO Group states that copies of the filing were served upon the parties on the official service list compiled by the Secretary in the captioned dockets.
Take notice that on March 24, 2005, Onondaga Cogeneration Limited Partnership (Onondaga) filed a triennial updated market analysis pursuant to the Commission's triennial rate review requirements, the letter order issued on February 9, 2000 in Docket No. ER00-895-000, and the Order Implementing New Generation Market Power Analysis and Mitigation Procedures,
Onondaga states that copies of the filing were served on parties on the official service list in the above-captioned proceeding.
Take notice that, on March 24, 2005, South Eastern Generating Corporation (SEGCO) submitted amendments to its FERC Electric Tariff, Original Volume No. 1 to reflect the change-in-status reporting requirement adopted by the Commission in Order No. 652,
SEGCO states that copies of the filing were served on parties on the official service list in the above-captioned proceeding.
Take notice that on March 24, 2005, WFEC GENCO, L.L.C. (GENCO) submitted a revised updated market power analysis. GENCO also submitted revised tariff sheets to reflect the change-in-status reporting requirement adopted by the Commission in Order No. 652,
GENCO states that copies of the filing were served on parties on the official service list in the above-captioned proceeding.
Take notice that on March 24, 2005, Mobile Energy, LLC and CPN Pleasant Hill, LLC submitted a joint amendment to their respective pending triennial updated market power analyses.
Take notice that on March 24, 2005, Redbud Energy LP (Redbud) submitted its market power update in compliance with the Commission's order issued May 13, 2004 in
Redbud states that copies of the filing were served upon parties on the official service list in the captioned proceeding.
Take notice that on March 24, 2005, Redbud Energy LP (Redbud) submitted for filing revisions to its FERC Electric Tariff, Original Volume No. 1 to include the reporting requirement for changes in status adopted in Order No. 652,
Redbud states that copies of the filing were served upon the parties on the official service list.
Take notice that on March 21, 2005, Astoria Energy LLC (Astoria) submitted a supplement to its March 1, 2005, filing of a request for Commission renewal of all aspects of Astoria's existing market-based rate authority, together with the waivers of and blanket authorizations under the Federal Power Act previously granted to Astoria. Astoria requests an effective date of March 6, 2005.
Take notice that, on March 24, 2005, Power Contract Financing II, L.L.C. (PCF II, LLC) submitted an amendment to its Rate Schedule FERC No. 1 to reflect the change-in-status reporting requirement adopted by the Commission in Order No. 652,
PCF II, LLC states that copies of the filing were served on parties on the official service list in this proceeding.
Take notice that on March 24, 2005, Power Contract Financing II, Inc. (PCF II, Inc.) submitted an amendment to its Rate Schedule FERC No. 1 to reflect the change-in-status reporting requirement adopted by the Commission in Order No. 652,
PCF II, Inc. states that copies of the filing were served on parties on the official service list in this proceeding.
Take notice that, on March 24, 2005, Utility Contract Funding II, LLC (UCF II) submitted an amendment to its Rate Schedule FERC No. 1 to reflect the change-in-status reporting requirement adopted by the Commission in Order No. 652,
UCF II states that copies of the filing were served on parties on the official service list in this proceeding.
Take notice that on March 23, 2005 and March 25, 2005, Elk River Windfarm LLC (Elk River) submitted Second Revised Sheet No. 8 and First Revised Sheet No. 1, respectively, to FERC Electric Tariff Original Volume No. 1.
Take notice that on March 23, 2005, Otter Tail Corporation, pursuant to the Commission's Rules of Practice and Procedures, 18 CFR 385.216, submitted a notice of withdrawal of its February 4, 2005 filing of a notice of succession in the Docket No. ER05-555-000.
Take notice that on March 23, 2005, Hot Spring Power Company submitted for filing Original Sheet No. 4, Revision No. 1, Hot Spring Power Company's FERC Electric Rate Schedule No. 1, in compliance with the Commission's letter order issued March 14, 2005, 110 FERC ¶ 61,284 (2005).
Take notice that on March 4, 2005, as amended on March 23, 2005, Gulf States Wholesale Equity Partners, LP submitted a petition requesting the acceptance of Gulf States Wholesale Equity Partners, LP's Rate Schedule FERC No. 1; the granting of certain blanket approvals, including the authority to sell electricity at market-based rates; and the waiver of certain Commission regulations. Gulf States Wholesale Equity Partners, LP states that it intends to engage in wholesale electric power and energy purchases and sales as a marketer and is not in the business of generating or transmitting electric power. Gulf States Wholesale Equity Partners, LP further states that it is involved in consulting of electricity and marketing of wholesale power and is not associated with any utilities, investor owned or otherwise.
Take notice that on March 23, 2005, the California Independent System Operator Corporation (CAISO) tendered for filing an amendment to the CAISO Tariff, Amendment No. 66, for expedited consideration and acceptance by the Commission. The CAISO states that the purpose of Amendment No. 66 is to implement an interim solution to the problem of excessive costs incurred as a result of the manner in which import and export bids from System Resources are cleared and settled under Phase 1B of the CAISO's Market Redesign and Technology Upgrade. The CAISO is requesting an effective date of March 24, 2005.
The CAISO states that this filing has been served upon the California Public Utilities Commission, the California Energy Commission, the California Electricity Oversight Board, and all parties with effective Scheduling Coordinator Agreements under the CAISO Tariff.
Take notice that on March 23, 2005, Entergy Services, Inc. (Entergy Services) submitted for filing on behalf of Entergy Arkansas, Inc. (EAI) a 2005 Wholesale Formula Rate Update (Update). Entergy Services states that the Update redetermines the formula rate charges and the Transmission Loss Factor.
Take notice that on March 23, 2005, Basin Electric Power Cooperative (Basin Electric) tendered for filing a revised Attachment L to its non-jurisdictional open-access transmission reciprocity tariff, FERC Electric Tariff, Original Volume No. 1 (West-Side OATT) pursuant to the Commission's order issued February 18, 2005,
Basin Electric states that copies of the transmittal letter to the filing were served upon customers under the West-Side OATT, the Public Service Company of Colorado, the Iowa Utilities Board, the Minnesota Public Utilities Commission, the Montana Public Service Commission, the Nebraska Public Service Commission, the New Mexico Public Service Commission, the North Dakota Public Service Commission, the South Dakota Public Utilities Commission, and the Wyoming Public Service Commission.
Take notice that on March 21, 2005, Birchwood Power Partners, L.P. filed a supplement to its February 28, 2005 “Request for Declaratory Order, Or in the Alternative, Petition for Order Granting Limited Waiver of Qualifying Facility Operating Standard.”
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
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380 (Order No. 486, 52 FR 47897), the Office of Energy Projects has reviewed the application for license for the Chignik Hydroelectric Project and has prepared an Environmental Assessment (EA) for the project. The project is located on the Indian Creek, in the town of Chignik, Alaska. The project occupies about two acres of United States land within the boundary of the Alaska Peninsula National Wildlife Refuge that is in the process of being conveyed to Far West, Inc., a local tribal Corporation.
The EA contains the staff's analysis of the potential environmental impacts of the project and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major Federal action that would significantly affect the quality of the human environment.
A copy of the EA is on file with the Commission and is available for public inspection. The EA may also be viewed on the Commission's website at
Any comments should be filed within 45 days from the issuance date of this notice, and should be addressed to the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Room 1-A, Washington, DC 20426. Please affix “Chignik Hydroelectric Project No. 620-009” to all comments. Comments may be filed electronically via Internet in lieu of paper. The Commission strongly encourages electronic filings.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C 3501
Written comments, identified by the docket identification (ID) number OPPT-2005-0019, must be received on or before June 6, 2005.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
You may be potentially affected by this action if you are a company that manufactures, processes, imports, or distributes in commerce chemical substances or mixtures. Potentially affected entities may include, but are not limited to:
• Chemical Manufacturing (NAICS 325), e.g., Basic Chemical Manufacturing; Resin, Synthetic Rubber and Artificial and Synthetic Fibers and Filaments Manufacturing; Pesticide, Fertilizer, and Other Agricultural Chemical Manufacturing; Paint, Coating, and Adhesive Manufacturing; Soap, Cleaning Compound, and Toilet Preparation Manufacturing, etc.
• Petroleum Refineries (NAICS 32411), e.g., Crude Oil Refining, Diesel Fuels Manufacturing, Fuel Oils Manufacturing, Jet Fuel Manufacturing, Kerosene Manufacturing, Petroleum Distillation, etc.
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR 710.28. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number 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. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
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Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. 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 submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the technical person
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the collection activity.
7. Make sure to submit your comments by the deadline in this notice.
8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
Pursuant to section 3506(c)(2)(A) of PRA, EPA specifically solicits comments and information to enable it to:
1. Evaluate whether the collections of information are necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility.
2. Evaluate the accuracy of the Agency's estimates of the burdens of the collections of information.
3. Enhance the quality, utility, and clarity of the information to be collected.
4. Minimize the burden of the collections of information on those who are to respond, including through the use of appropriate automated or electronic collection technologies or other forms of information technology, e.g., permitting electronic submission of responses.
EPA is seeking comments on the following ICR:
EPA uses this information to construct a complete picture of the known effects of the chemicals in question, leading to determinations by EPA of whether additional testing of the chemicals is required. The information enables EPA to base its testing decisions on the most complete information available and to avoid demands for testing that may be duplicative. EPA will use information obtained via this collection to support its investigation of the risks posed by chemicals and, in particular, to support its decisions on whether to require industry to test chemicals under section 4 of TSCA.
Responses to the collection of information are mandatory (see 40 CFR part 716). Respondents may claim all or part of a notice confidential. EPA will disclose information that is covered by a claim of confidentiality only to the extent permitted by, and in accordance with, the procedures in TSCA section 14 and 40 CFR part 2.
Under PRA, “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. For this collection it includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
The ICR provides a detailed explanation of this estimate, which is only briefly summarized in this notice. The annual public burden for this collection of information is estimated to be 14 hours per response. The following is a summary of the estimates taken from the ICR:
There is a decrease of 1,462 hours (from 2,344 hours to 882 hours) in the total estimated respondent burden compared with that identified in the information collection request most recently approved by OMB. This change is due to adjustments in the estimates to better reflect EPA's experience with the 1998 revisions to the TSCA section 8(d) reporting standards that reduced reporting burden. The last ICR renewal estimated reporting burden by projecting responses based on historical reporting from rules prior to the 1998 revisions. The data used to project future responses for this ICR renewal are limited to reports for chemicals added to the TSCA section 8(d) list after the 1998 revisions. The new estimates are based solely on experience with the 2004 list of TSCA section 8(d) chemicals (the first chemicals added to the list since the 1998 revisions to the regulations). As a result, EPA has reduced the estimated number of reports that will be submitted in the future.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. EPA will issue another
Environmental protection, Reporting and recordkeeping requirements.
Environmental Protection Agency.
Notice.
The Environmental Protection Agency (EPA) announces the fifth public meeting of the Water Security Working Group (WSWG) of the National Drinking Water Advisory Council (NDWAC), which was established under the Safe Drinking Water Act. The purpose of this meeting is to provide an opportunity for the WSWG members to continue deliberations on the following topics: (1) Features of active and effective security programs for drinking water and wastewater utilities (water sector); (2) incentives to encourage broad adoption of active and effective security programs in the water sector; and (3) measures of the performance of water security programs. The focus of the meeting will be on review of the WSWG's draft report and recommendations. The meeting will be open to the public and an opportunity for public comment will be provided. The WSWG findings and recommendations will be provided to the NDWAC for their consideration. The WSWG anticipates providing findings and recommendations to the NDWAC in spring 2005. This is the final planned meeting of the WSWG.
The WSWG meeting is April 18-20, 2005, in Crystal City, VA, in the Washington, DC area. On April 18, 2005, the meeting is scheduled from 1:30 p.m. to 5:30 p.m., eastern time (e.t.). On April 19, 2005, the meeting is scheduled from 8 a.m. to 5 p.m., e.t. On April 20, 2005, the meeting is scheduled from 8 a.m. to 12 p.m., e.t.
The meeting will take place at the Hilton Crystal City, 2399 Jefferson Davis Highway, Arlington, VA 22202. Meetings will be held in the Decatur Room on April 18 and April 19 and in Chesapeake Hall on April 20.
Interested participants from the public should contact Marc Santora, Designated Federal Officer, U.S. Environmental Protection Agency, Office of Ground Water and Drinking Water, Water Security Division (Mail Code 4601-M), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please contact Marc Santora at
The WSWG's mission is to: (1) Identify, compile, and characterize best security practices and policies for drinking water and wastewater utilities and provide an approach for considering and adopting these practices and policies at a utility level; (2) consider mechanisms to provide recognition and incentives that facilitate a broad and receptive response among the water sector to implement these best security practices and policies and make recommendations as appropriate; (3) consider mechanisms to measure the extent of implementation of these best security practices and policies, identify the impediments to their implementation, and make recommendations as appropriate. The Group is comprised of sixteen members from water and wastewater utilities, public health, academia, state regulators, and environmental and community interests. It is supported by technical experts from the Environmental Protection Agency, the Department of Homeland Security, the Centers for Disease Control and Prevention, and the Department of Defense.
The WSWG is a working group of the NDWAC; it is not a Federal advisory committee and therefore not subject to the same public disclosure laws that govern Federal advisory committees. The Group can enter into closed session as necessary to provide an opportunity to discuss security-sensitive information relating to specific water sector vulnerabilities and security tactics. Currently, the WSWG does not anticipate closing any parts of the April meeting to the public. However, the Group reserves the right to enter into closed session, if necessary, late in the afternoon of April 18, 2005, immediately before lunch on April 19, 2005, and late in the day on April 20, 2005. If closed sessions are needed, opportunities for public comment will be provided before the closed sessions begin.
If there is a closed meeting session, only WSWG members, Federal resource personnel, facilitation support contractors, and outside experts identified by the facilitation support contractors will attend the closed meeting. A general summary of the topics discussed during closed meetings and the individuals present will be included with the summary of the open portions of the WSWG meeting.
An opportunity for public comment will be provided during the open part of the WSWG meeting. Oral statements will be limited to five minutes, and it is preferred that only one person present the statement on behalf of a group or organization. Written comments may be provided at the meeting or may be sent, by mail, to Marc Santora, Designated Federal Officer for the WSWG, at the e-mail address listed in the
Any person needing special accommodations at this meeting, including wheelchair access, should contact Marc Santora, Designated Federal Officer, at the number or e-mail address listed in the
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of EPA's risk assessments, preliminary risk reduction options, and related documents for fluometuron, a phenylurea herbicide, and opens a public comment period on these documents. The public is encouraged to suggest risk management ideas or proposals to address the risks identified. EPA is developing a Reregistration Eligibility Decision (RED) for fluometuron through a modified, 4-Phase public participation process that the Agency uses to involve the public in developing pesticide reregistration and tolerance reassessment decisions. Through this program, EPA is ensuring that all pesticides meet current health and safety standards.
Comments, identified by docket identification (ID) number OPP-2004-0372, must be received on or before June 6, 2005.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Kylie Rothwell, Special Review and Reregistration Division (7508C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; courier address: 1801 S. Bell Street; Arlington, VA 22202; telephone number: (703) 308-8055; fax number: (703) 308-8172; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number 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. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
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Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. 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 submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline identified.
8. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
EPA is releasing for public comment its human health and environmental fate and effects risk assessments and related documents for the phenylurea herbicide, fluometuron, and is encouraging the public to suggest risk management ideas or proposals. EPA is ensuring that pesticides meet current standards under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA).
Fluometuron is a preplant, preemergence and/or postemergence herbicide used on cotton to control broadleaf and grass weeds. There are potential chronic dietary risks of concern and cancer risks of concern as a result of drinking water exposure, and potential acute and chronic ecological risks of concern. EPA is providing an opportunity, through this notice, for interested parties to provide comments and input on the Agency's risk assessments for fluometuron. Such comments and input could address the potential risks of concern. The Agency is interested in obtaining any additional data or information that may further refine the risk assessments, such as additional cancer data, ecological toxicity data, percent crop treated information, typical application rates and timings, etc.
EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of all people, regardless of race, color, national origin, or income, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical, unusually high exposure to fluometuron, compared to the general population.
EPA is releasing for public comment its risk assessments for fluometuron, to provide an opportunity for interested parties to also provide risk management proposals or otherwise comment on risk management. Such comments and proposals should further discuss ways to manage fluometuron's dietary (water), cancer, and/or ecological risks resulting from its use on cotton, as discussed in the Agency's risk assessments.
EPA is applying the principles of public participation to all pesticides undergoing reregistration and tolerance reassessment. The Agency's Pesticide Tolerance Reassessment and Reregistration; Public Participation Process, published in the
All comments should be submitted using the methods in Unit I. of the
Section 4(g)(2) of FIFRA as amended directs that, after submission of all data concerning a pesticide active ingredient, “the Administrator shall determine whether pesticides containing such active ingredient are eligible for reregistration,” before calling in product specific data on individual end-use products and either reregistering products or taking other “appropriate regulatory action.”
Section 408(q) of the FFDCA, 21 U.S.C. 346a(q), requires EPA to review tolerances and exemptions for pesticide residues in effect as of August 2, 1996, to determine whether the tolerance or exemption meets the requirements of section 408(b)(2) or (c)(2) of FFDCA. This review is to be completed by August 3, 2006.
Environmental protection, pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of applications to register pesticide products containing new active ingredients not included in any previously registered products pursuant to the provisions of section 3(c)(4) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended.
Written comments, identified by the docket identification (ID) number OPP-2005-0059, must be received on or before May 6, 2005.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Joanne Edwards, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001, telephone number: (703) 305-6736; E-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
Crop production (NAICS code 111)
• Animal production (NAICS code 112)
• Food manufacturing (NAICS code 311)
• Pesticide manufacturing (NAICS code 32532)
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number 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. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
1.
i.
ii.
iii.
2.
3.
Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. 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 submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the registration activity.
7. Make sure to submit your comments by the deadline in this notice.
8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response.
EPA received applications as follows to register pesticide products containing active ingredients not included in any previously registered products pursuant to the provision of section 3(c)(4) of FIFRA. Notice of receipt of these applications does not imply a decision by the Agency on the applications.
1.
2.
3.
Environmental protection, Pesticides and pest.
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's approval of an application for test marketing exemption (TME) under section 5(h)(1) of the Toxic Substances Control Act (TSCA) and 40 CFR 720.38. EPA has designated this application as TME-05-0001. The test marketing conditions are described in the TME application and in this notice.
Approval of this TME is effective March 24, 2005.
This action is directed in particular to the chemical manufacturer and/or importer who submitted the TME to EPA. This action may, however, be of interest to the public in general. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Section 5(h)(1) of TSCA and 40 CFR 720.38 authorizes EPA to exempt persons from premanufacture notification (PMN) requirements and permit them to manufacture or import new chemical substances for test marketing purposes, if the Agency finds that the manufacture, processing, distribution in commerce, use, and disposal of the substances for test marketing purposes will not present an unreasonable risk of injury to health or the environment. EPA may impose restrictions on test marketing activities and may modify or revoke a test marketing exemption upon receipt of new information which casts significant doubt on its finding that the test marketing activity will not present an unreasonable risk of injury.
EPA approves the above-referenced TME. EPA has determined that test marketing the new chemical substance, under the conditions set out in the TME application and in this notice, will not present any unreasonable risk of injury to health or the environment.
The test market time period, production volume, number of customers, and use must not exceed specifications in the application and this notice. All other conditions and restrictions described in the application and in this notice must also be met.
The following additional restrictions apply to this TME. A bill of lading accompanying each shipment must state that the use of the substance is restricted to that approved in the TME. In addition, the applicant shall maintain the following records until 5 years after the date they are created, and shall make them available for inspection or copying in accordance with section 11 of TSCA:
1. Records of the quantity of the TME substance produced and the date of manufacture.
2. Records of dates of the shipments to each customer and the quantities supplied in each shipment.
3. Copies of the bill of lading that accompanies each shipment of the TME substance.
EPA identified no significant health or environmental concerns for the test market substance. Therefore, the test market activities will not present any unreasonable risk of injury to human health or the environment.
Environmental protection, Test marketing exemptions.
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.
Persons wishing to comment on this information collection should submit comments June 6, 2005. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all Paperwork Reduction Act (PRA) comments to Judith B. Herman, Federal Communications Commission, 445 12th Street, SW., Room 1-C804, Washington, DC 20554 or via the internet to
For additional information or copies of the information collections contact Judith B. Herman at 202-418-0214 or via the internet at
The Commission does not, however, explicitly require compliance with these statutory requirements as a condition of receipt of universal service discounts. If this proposal is adopted and used with an existing form,
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 Paperwork Reduction Act (PRA) comments should be submitted on or before May 6, 2005. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all comments regarding this Paperwork Reduction Act submission to Judith B. Herman, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., DC 20554 or via the Internet to
For additional information or copies of the information collection(s), contact Judith B. Herman at 202-418-0214 or via the Internet at
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, 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 that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before June 6, 2005. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of
Direct all Paperwork Reduction Act (PRA) comments to Judith B. Herman, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to
For additional information or copies of the information collection(s), contact Judith B. Herman at (202) 418-0214 or via the Internet at
The Commission is requesting an extension (no change in requirements) in order to obtain the full three-year clearance from OMB. As soon as the 60 day comment period is completed, the Commission will submit this collection to the Office of Management and Budget (OMB) for review and approval.
The information contained in these reports is used by the FCC to determine whether the activities reported have affected or are likely to affect adversely the carrier's service to the public or whether these activities result in undue or unreasonable increases in charges.
After this 60 day comment period is completed, the Commission will submit this information collection to the Office of Management and Budget (OMB) for review and approval.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, 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 that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before June 6, 2005. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all Paperwork Reduction Act (PRA) comments to Les Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to
For additional information or copies of the information collection(s), contact Les Smith at (202) 418-0217 or via the Internet at
47 CFR 68.300—Labeling requirements. As of April 1, 1997, all registered telephones, including cordless telephones, manufactured in the United States (other than for export) or imported for use in the United States, that are hearing aid compatible (HAC) shall have the letters “HAC” permanently affixed. The information collections for both rules include third party disclosure and labeling requirements. The information is used primarily to inform consumers who purchase and/or use telephone equipment to determine whether the telephone is hearing aid compatible.
The Federal Communications Commission (FCC) has received Office of Management and Budget (OMB) approval for the following public information collections pursuant to the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid control number.
Dana Jackson, Federal Communications Commission, 445 12th Street, SW., Washington DC, 20554, (202) 418-2247 or via the Internet at
On June 30, 2004, the Commission also released a
Federal Communications Commission.
Notice.
This document establishes final procedures for resolving End User Common Line (EUCL) informal complaints. The Commission's actions are necessary in order to resolve several hundred longstanding informal complaints previously filed by payphone providers against local exchange carriers (LEC). The intended effect of the
EUCL informal complainants must file their Notices of Intent to Convert by Friday, April 22, 2005, if they wish to pursue their claims via the Commission's formal complaint process. The final deadline for actual conversion of informal complaints to formal complaints is extended to Friday, September 9, 2005, for those complaints for which a Notice of Intent to File is filed by Friday, April 22, 2005.
Submit electronic notification of intent to pursue existing informal complaints at the following Web address:
Sandra Gray-Fields, 202-418-7330.
On March 25, 2005, the Enforcement Bureau of the Federal Communications Commission (Commission) released the
The
The complete text of the
The Commission will not send a copy of this Order pursuant to the Congressional Review Act,
March 23, 2005
Petitions for Reconsideration have been filed in the Commission's Rulemaking proceeding listed in this Public Notice and published pursuant to 47 CFR 1.429(e). The full text of this document is available for viewing and copying in Room CY-B402, 445 12th Street, SW., Washington, DC or may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI)(1-800-378-3160). Oppositions to these petitions must be filed by April 21, 2005.
Petitions for Reconsideration and Clarification have been filed in the Commission's Rulemaking proceedings listed in this Public Notice and published pursuant to 47 CFR 1.429(e). The full text of this document is available for viewing and copying in Room CY-B402, 445 12th Street, SW., Washington, DC or may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI) (1-800-378-3160). Oppositions to these petitions must be filed by April 21, 2005.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may obtain copies of agreements by contacting the Commission's Office of Agreements at 202-523-5793 or via e-mail at
By order of the Federal Maritime Commission.
President's Committee for People with Intellectual Disabilities (PCPID), HHS.
Notice of meeting.
Monday, May 9, 2005, from 3 p.m. to 5 p.m. (daylight savings time). The full committee meeting of the President's Committee for People with Intellectual Disabilities will be conducted by telephone conference call and will be open to the public. Anyone interested in participating in the conference call should advise Sally Atwater at 202-619-0634, no later than April 25, 2005.
While the meeting will be conducted by telephone conference call, if you would like to participate in the call with staff, please report to the Aerospace Center Office Building, 901 D Street, SW., Office of Public affairs Conference Room, 7th Floor West, Washington, DC no later than 2:45 p.m. (daylight savings time). Please bear in mind that space is limited.
The toll free number is: 1-800-857-9091, Passcode: May 2005 Quarterly Meeting. Individuals with disabilities who need accommodations in order to participate in the call (
Sally Atwater, Executive Director, President's Committee for People with Intellectual Disabilities, Aerospace Center Building, Suite 701, 370 L'Enfant Promenade, SW., Washington, DC 20447, telephone—(202) 619-0634, Fax—(202) 205-9519, e-mail—
The PCPID acts in an advisory capacity to the President and the Secretary of Health and Human Services on a broad range of topics relating to programs, services, and supports for persons with intellectual disabilities. The Committee, by Executive Order, is responsible for evaluating the adequacy of current practices in programs, services and supports for persons with intellectual disabilities, and for reviewing legislative proposals that impact on the quality of life that is experienced by citizens with intellectual disabilities and their families.
Directorate of Information Analysis and Infrastructure Protection, DHS.
Notice of meeting.
The Telecommunications Service Priority System Oversight Committee (TSP OC) will meet on Tuesday, May 3, 2005, from 9 a.m. to 12 noon at the offices of the U.S. Department of Homeland Security (DHS) National Communications System (NCS) in Arlington, Virginia. This meeting is open to the public. Limited seating will be available. Reservations are necessary for access to the NCS facility and meeting location.
The TSP OC identifies and reviews any problems developing in the TSP System and recommends actions to correct them or prevent recurrence.
The TSP OC will meet Tuesday, May 3, 2005, from 9 a.m. to 12 noon.
The TSP OC will meet at the DHS/NCS National Coordinating Center for Telecommunications Conference Room, 701 S. Courthouse Road, Arlington, VA, second floor. You may submit comments, identified by DHS Docket Number DHS-2005-0027 by one of the following methods:
• EPA Federal Partner EDOCKET Web Site:
• Federal eRulemaking Portal:
• Mail/Hand Delivery/Courier: Department of Homeland Security, c/o DISA, Attn: NCS (N3), Lt. Col. Joanne Sechrest/703-607-4960, NCS/Priority Telecommunications Branch, P.O. Box 4502, Arlington, VA 22204-4502, 7:30 a.m. to 4 p.m.
Ms. Susan Flint, DHS/NCS TSP Program Office, 703-607-4932. Media or press should contact Mr. Steve Barrett at 703-607-6211.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. 1
This meeting is open to the public. Please note that the meeting may close early if all business is finished.
For information on facilities or services for individuals with disabilities, or to request special assistance at the meeting, telephone Susan Flint as soon as possible.
Coast Guard, DHS.
Notice of meeting.
The Chemical Transportation Advisory Committee (CTAC) and its Hazardous Cargo Transportation Security (HCTS) Subcommittee will meet to discuss various issues relating to the marine transportation of hazardous materials in bulk. These meetings will be open to the public.
CTAC will meet on Thursday, April 21, 2005, from 9 a.m. to 3:30 p.m. The HCTS Subcommittee will meet on Wednesday, April 20, 2005, from 9 a.m. to 3:30 p.m. These meetings may close early if all business is finished. Written material and requests to make oral presentations should reach the Coast Guard on or before April 15, 2005. Requests to have a copy of your material distributed to each member of the Committee should reach the Coast Guard on or before April 15, 2005.
Both CTAC and the HCTS Subcommittee will meet at the Coast Guard Headquarters Building, 2100 2nd Street, SW., Washington DC 20593, in room 2415. Send written material and requests to make oral presentations to Commander Robert J. Hennessy, Executive Director of CTAC, Commandant (G-MSO-3), U.S. Coast Guard Headquarters, 2100 Second Street SW., Washington, DC 20593-0001 or E-mail:
Commander Robert J. Hennessy, Executive Director of CTAC, or Ms. Sara Ju, Assistant to the Executive Director, telephone 202-267-1217, fax 202-267-4570.
Notice of these meetings is given under the Federal Advisory Committee Act, 5 U.S.C. App. 2.
(1) Introduce Subcommittee members and attendees.
(2) Discuss new Policy Advisory Council decisions.
(3) Discuss security issues related to the National Response Center.
(4) Discuss Coast Guard Maritime Security Training Initiatives.
(5) Brief on Sensitive Security Information training initiatives.
(6) Review of draft documents governing Facility Security Plan audits.
(1) Introduce Committee members and attendees.
(2) Final report presentation from the CTAC National Fire Protection Association (NFPA) 472 Subcommittee.
(3) Discussion and vote on draft chapter incorporating marine specific competencies, for hazardous material incident responders, into the NFPA 472 Standard.
(4) Status report presentation from the CTAC Hazardous Cargo Transportation Security Subcommittee.
(5) Discussion and vote on the initiative to establish a CTAC Outreach Subcommittee.
(6) Presentation by the Coast Guard's Office of Operating and Environmental Standards on the Ballast Water Management Program.
(7) Presentation on MARPOL Annex II.
(8) Presentation by the Coast Guard's Office of Investigations and Analysis on the Coast Guard Marine Casualty Analysis Program.
(9) Presentation by the Coast Guard's Office of Response on Hazardous Substance Response Plan Regulations.
(10) Update of Coast Guard Regulatory Projects.
These meetings are open to the public. Please note that the meetings may close early if all business is finished. At the discretion of the Chair, members of the public may make oral presentations during the meetings generally limited to 5 minutes. If you would like to make an oral presentation at a meeting, please notify the Executive Director and submit written material on or before April 15, 2005. If you would like a copy of your material distributed to each member of the Committee in advance of a meeting, please submit 25 copies to the Executive Director (
For information on facilities or services for individuals with disabilities, or to request special assistance at the meeting, telephone the Executive Director as soon as possible.
Bureau of Indian Affairs, Interior.
Notice.
This notice advises the public of a correction to the Bureau of Indian Affairs' (BIA) Notice of Intent to prepare an Environmental Impact Statement (EIS) for the North Fork Rancheria's Proposed Trust Acquisition and Hotel/Casino Project, Madera County, California, published in the
This notice also re-opens public scoping to identify potential issues, concerns and alternatives to be considered in the EIS.
Written comments must arrive by May 6, 2005.
You may mail or hand carry written comments to Clay Gregory, Regional Director, Pacific Regional Office, Bureau of Indian Affairs, 2800 Cottage Way, Sacramento, California 95825.
John Rydzik, (916) 978-6042.
The proposed action and a reasonable range of alternatives, including a no-action alternative, will be analyzed in the EIS. Other possible alternatives currently under consideration are a reduced-intensity alternative, an alternate-use alternative and an off-site alternative. The range of issues and alternatives may be expanded based on comments received during the scoping process. Additional supplemental information, including maps of the project site, may be obtained from John Rydzik at (916) 978-6042.
Comments, including names and addresses of respondents, will be available for public review at the BIA address shown in the
This notice is published in accordance with section 1503.1 of the Council of Environmental Quality Regulations (40 CFR parts 1500 through 1508) implementing the procedural requirements of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4371
Bureau of Indian Affairs, Interior.
Notice of Class III Gaming Compact taking effect.
Notice is given that the Tribal Gaming Compact between the Tonkawa Tribe and the State of Oklahoma is considered approved and is in effect.
George T. Skibine, Director, Office of Indian Gaming Management, Office of the Deputy Assistant Secretary—Policy and Economic Development, Washington, DC 20240, (202) 219-4066.
Under section 11 (d)(7)(D) of the Indian Gaming Regulatory Act of 1988 (IGRA), Public Law 100-497, 25 U.S.C. 2710, the Secretary of the Interior must publish in the
Bureau of Land Management, Interior
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Land Management (BLM) requests the Office of Management and Budget (OMB) to extend an existing approval to collect information from those persons who submit Form 2520-1 to apply for a desert-land entry to reclaim, irrigate, and cultivate arid and semiarid public lands in the Western United States. The BLM uses this information to determine if the applicant is eligible to make a desert-land entry under the appropriate land entry laws.
You must submit your comments to BLM at the address below on or before June 6, 2005. BLM will not necessarily consider any comments received after the above date.
You may mail comments to: Regulatory Affairs Group (WO-630), Eastern States Office, 7450 Boston Blvd., Springfield, Virginia 22153.
You may send comments via Internet to:
You may deliver comments to the Bureau of Land Management, Administrative Record, Room 401, 1620 L Street, NW., Washington, DC.
Comments will be available for public review at the L Street address during regular business hours (7:45 a.m. to 4:15 p.m.) Monday through Friday.
You may contact Alzata L. Ransom, Lands and Realty Group, on (202) 452-7772 (Commercial or FTS). Persons who use a telecommunication device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) on 1-800-877-8330, 24 hours a day, seven days a week, to contact Ms. Ransom.
5 CFR 1320.12(a) requires that we provide a 60-day notice in the
(a) Whether the collection of information is necessary for the proper functioning of the agency, including whether the information will have practical utility;
(b) The accuracy of our estimates of the information collection burden, including the validity of the methodology and assumptions we use;
(c) Ways to enhance the quality, utility, and clarity of the information collected; and
(d) Ways to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Congress passed the Desert Land Act of March 3, 1877 (19 Stat. 377; 43 U.S.C. 321-323), as amended by the Act of March 3, 1891 (26 Stat. 1096; 43 U.S.C. 231, 323, 325, 327-329) to encourage and promote the economic development of the arid and semiarid public lands. Through the Act, you may apply for a desert-land entry to reclaim, irrigate, and cultivate arid and semiarid public lands in the Western United States. The regulations in 43 CFR 2520 provide guidelines and procedures to obtain public lands under the Act.
You qualify to file a desert-land entry if you are a citizen of the United States; 21 years old; and a resident in the States of Arizona, California, Colorado, Idaho, Montana, New Mexico, North Dakota, South Dakota, Utah, Washington, or Wyoming (no residency is required in the State of Nevada).
You may apply for one or more tracts of public lands totaling no more than 320 acres. The land must be surveyed or unsurveyed, unappropriated, non-mineral, and non-timber. The lands must be suitable for agricultural purposes and more valuable for that purpose than any other. The tracts of land must be sufficiently close to each other to manage satisfactorily as an economic unit.
You must locate lands you feel can be economically developed and determine the legal land description. You must contact the BLM State Office where the lands are located and verify the lands are available for desert-land entry application.
When BLM receives the application, we will examine your application for completeness and accuracy and classify the lands included in the application. BLM will approve your application of the lands are classified suitable for desert-land entry or reject your application if the lands are classified unsuitable for desert-land entry.
Based on past experience processing these applications, BLM estimates the public reporting burden for completing the Form 2520-1 is 2 hours. BLM estimates that we receive approximately 3 applications annually, with a total annual burden of 6 hours.
Any member of the public may request and obtain, without charge, a copy of the BLM Form 2520-1 by contacting the person identified under
BLM will summarize all responses to this notice and include them in the request for OMB approval. All comments will become a matter of public record.
Bureau of Land Management, Interior.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Land Management (BLM) is requesting the Office of Management and Budget (OMB) to extend an existing approval to collect certain information from those persons who wish to transfer interest in oil and gas or geothermal leases by assignment of record title or transfer operating rights (sublease) in oil and gas or geothermal leases under the terms of the mineral leasing laws. BLM uses Form 3000-3, Assignment of Record Title Interest In A Lease for Oil and Gas or Geothermal Resources, and Form 3000-3a, Transfer of Operating Rights (Sublease) In A Lease for Oil and Gas or Geothermal Resources, to collect this information. This information allows the BLM to transfer interest in oil and gas or geothermal leases by assignment of record title or transfer operating rights (sublease) in oil and gas or geothermal leases under the regulations at 43 CFR 3106, 3135, and 3216.
You must submit your comments to BLM at the address below on or before June 6, 2005. BLM will not necessarily consider any comments received after the above date.
You may mail comments to: Bureau of Land Management, (WO-630), Eastern States Office, 7450 Boston Blvd., Springfield, Virginia 22153.
You may send comments via Internet to:
You may deliver comments to the Bureau of Land Management, Administrative Record, Room 401, 1620 L Street, NW., Washington, DC.
You may contact Barbara Gamble on (202) 452-0338 (Commercial or FTS). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service at 1-800-877-8330, 24 hours a day, seven days a week, to contact Ms. Gamble.
5 CFR 1320.12(a) requires BLM to provide 60-
(a) whether the collection of information is necessary for the proper functioning of the agency, including whether the information will have practical utility;
(b) the accuracy of our estimates of the information collection burden, including the validity of the methodology and assumptions we use;
(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 those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The Mineral Leasing Act of 1920 (30 U.S.C. 181
Assignor/transferor submits Form 3000-3, Assignment of Record Title Interest In A Lease for Oil and Gas or Geothermal Resources, and Form 3000-3a, Transfer of Operating Rights (Sublease) In A Lease for Oil and Gas or Geothermal Resources, to transfer interest in oil and gas or geothermal leases by assignment of record title or transfer operating rights (sublease) in oil and gas or geothermal leases under the regulations at 43 CFR 3106, 3135, and 3216. These regulations outline the procedures for assigning record title interest and transferring operating rights in a lease to explore for, develop, and produce oil and gas resources and geothermal resources.
The assignor/transferor provides the required information to comply with the regulations in order to process the assignments of record title interest or transfer of operating rights (sublease) in a lease for oil and gas or geothermal resources. The assignor/transferor submits the required information to BLM for approval under 30 U.S.C. 187a and the regulations at 43 CFR 3106, 3135, and 3216.
BLM uses the information submitted by the assignor/transferor to identify the interest ownership that is assigned or transferred and the qualifications of the assignee-transferee. BLM determines if the assignee-transferee is qualified to obtain the interest sought and ensures the assignee/transferee does not exceed statutory acreage limitations.
Based on BLM's experience administering the activities described above, we estimate it takes 30 minutes per response to complete the required information. The respondents include individuals, small businesses, and large corporations. The frequency of response is occasional. We estimate 60,000 responses per year and a total annual burden of 30,000 hours.
BLM will summarize all responses to this notice and include them in the request for OMB approval. All comments will become a matter of public record.
Minerals Management Service (MMS), Interior.
Notice of meeting.
The OCS Scientific Committee will meet at the Embassy Suites Dulles-North in Dulles (Sterling), Virginia.
Wednesday, April 27, 2005, from 8 a.m. to 5:30 p.m.; Thursday, April 28, 2005, from 8 a.m. to 5:30 p.m.; and Friday, April 29, 2005, 8:30 a.m. to 12:30 p.m.
Embassy Suites Dulles-North/Loudoun, 44610 Waxpool Road, Dulles, Virginia 20147, telephone (703) 723-5300.
A copy of the agenda may be requested from MMS by calling Ms. Carolyn Beamer at (703) 787-1211. Other inquiries concerning the OCS SC meeting should be addressed to Dr. James Kendall, Executive Secretary to the OCS SC, Minerals Management Service, 381 Elden Street, Mail Stop 4043, Herndon, Virginia 20170-4817 or by calling (703) 787-1656.
The OCS SC will provide advice on the feasibility, appropriateness, and scientific value of the OCS Environmental Studies Program to the Secretary of the Interior through the Director of the MMS. The SC will review the relevance of the research and data being produced to meet MMS scientific information needs for decision making and may recommend changes in scope, direction, and emphasis.
The Committee will meet in plenary session on Wednesday, April 27. Individual Committee members will report on the January meetings of the Gulf of Mexico OCS Region's Information Transfer Meeting and affiliated OCS SC's Deepwater Subcommittee, the January and March meetings of the OCS SC Arctic Subcommittee meeting, and the OCS SC's observations made at the MMS/Environmental Protection Agency Hypoxia meeting conducted this past summer. Also on April 27, presentations will be made to the OCS SC outlining how archeology studies are useful to MMS information needs and how other large environmental programs handle environmental data and what options are being used and/or considered for serving MMS's database needs. The MMS Director will also address the Committee.
On Thursday, April 28, the Committee will meet in discipline breakout sessions (
On Friday, April 29, the Committee will meet in plenary session for reports of the individual discipline breakout sessions of the previous day and to continue with Committee business.
The meetings are open to the public. Approximately 30 visitors can be accommodated on a first-come-first-served basis at the plenary session.
Federal Advisory Committee Act, Public Law 92-463, 5 U.S.C., Appendix I, and the Office of Management and Budget's Circular A-63, Revised.
This notice announces a revision of the boundaries of Indiana Dunes National Lakeshore, Indiana, to include four (4) parcels of land within the boundaries of the National Lakeshore. This action is taken under the authority of 16 U.S.C. 460u-19 (Pub. L. 94-549, enacted October 18, 1976).
Superintendent, Indiana Dunes National Lakeshore, 1100 North Mineral Springs Road, Porter, Indiana 46304-1299, or by telephone at 219-926-7561, extension 410.
Notice is hereby provided that the boundaries of Indiana Dunes National Lakeshore are revised. This revision is to include certain parcels of real property situated in Porter County, Indiana, and is effective upon publication of this notice. These parcels will be donated to the United States of America and they are contiguous to the National Lakeshore boundaries. These parcels contain, in aggregate, 0.82 of an acre of land, more or less.
The parcels are identified as follows:
All of the above-cited segment maps are dated July 14, 2004.
These maps are on file at the following locations: U.S. Department of the Interior, National Park Service, Midwest Region, Land Resources, 601 Riverfront Drive, Omaha, Nebraska 68102-2571; Indiana Dunes National Lakeshore, 1100 North Mineral Springs Road, Porter, Indiana 46304-1299.
National Park Service, Department of the Interior.
Notice of availability of a Record of Decision on the Final Environmental Impact Statement for the General Management Plan, Rio Grande Wild and Scenic River.
Pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969, codified as amended at 42 U.S.C. 4332(2)(C), the National Park Service announces the availability of the Record of Decision for the Final Environmental Impact Statement, General Management Plan for Rio Grande Wild and Scenic River, Texas. On February 8, 2005, the Associate Regional Director, Intermountain Region approved the Record of Decision for the project. As soon as practicable, the National Park Service will begin to implement the General Management Plan, described as the Preferred Alternative contained in the Final Environmental Impact Statement issued on January 7, 2005.
The following course of action will occur under the preferred alternative. The protection of natural and cultural resources will be emphasized throughout the river corridor, as well as providing opportunities for traditional visitor uses. As mandated by the Wild and Scenic Rivers Act, a permanent boundary for the wild and scenic river is established for protection and management of the outstandingly remarkable values. The National Park Service will negotiate and implement cooperative agreements with nonfederal landowners that specify the rights and responsibilities of the National Park Service and each landowner. A river use plan and resource management plan will be developed for the entire river. The NPS will cooperate with other U.S agencies and the appropriate agencies in Mexico to maintain or enhance water quality and minimum flows in the river. The preferred alternative also recommends to Congress that the upstream segment of the Rio Grande in Big Bend National Park be designated as part of the Wild and Scenic River.
The selected action and one other alternative were analyzed in the draft and final environmental impact statements. A full range of foreseeable environmental consequences was assessed. The full Record of Decision includes a statement of the decision made, synopses of other alternatives considered, the basis for the decision, a finding of non-impairment of park resources and values, a listing of measures to minimize environmental harm, and an overview of public involvement in the planning process.
John H. King, Superintendent, Rio Grande Wild and Scenic River, P.O. Box 129, Big Bend National Park, TX 79834-0129, (432) 477-1102.
Copies of the Record of Decision are available from the contact listed above.
Notice is hereby given in accordance with the Federal Advisory Committee Act that a meeting of the Chesapeake and Ohio Canal National Historic Park Advisory Commission will be held at 9:30 a.m. on Friday April 15, 2005, Camp Kanawha, end of Rock Hall Road in Point of Rocks Maryland.
The Commission was established by Public Law 91-644 to meet and consult with the Secretary of the Interior on general policies and specific matters related to the administration and development of the Chesapeake and Ohio Canal National Historical Park.
The members of the Commission are as follows:
Topics that will be presented during the meeting include:
1. Update on park planning and design projects.
2. Update on major construction/development projects.
3. Update on partnership projects.
The meeting will be open to the public. Any member of the public may file with the Commission a written statement concerning the matters to be discussed. Persons wishing further information concerning this meeting, or who wish to submit written statements, may contact Kevin Brandt, Superintendent, C&O Canal National Historical Park, 1850 Dual Highway, suite 100, Hagerstown MD 21740.
Minutes of the meeting will be available for public inspection six weeks after the meeting at park headquarters, Hagerstown, Maryland.
National Park Service.
Notice of April 16, 2005, meeting.
This notice sets forth the date of the April 16, 2005, meeting of the Flight 93 Advisory Commission.
The public meeting of the Advisory Commission will be held on Saturday, April 16, 2005, from 1 p.m. to 4 p.m. Additionally, the Commission will attend the Flight 93 Memorial Task Force meeting the same day from 8 a.m. to 11 a.m., which is also open to the public.
The April 16, 2005 Commission meeting will consist of:
(1) Opening of Meeting and Pledge of Allegiance.
(2) Review and Approval of Minutes from January 15, 2005.
(3) Reports from the Flight 93 Memorial Task Force and the National Park Service. Comments from the public will be received after each report and/or at the end of the meeting.
(4) Old Business.
(5) New Business.
(6) Public Comments.
(7) Closing Remarks.
Joanne M. Hanley, Superintendent, Flight 93 National Memorial, 109 West Main Street, Somerset, PA 15501. 814-443-4557.
The meeting will be open to the public. Any member of the public may file with the Commission a written statement concerning agenda items. The statement should be addressed to the Flight 93 Advisory Commission, 109 West Main Street, Somerset, PA 15501.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before March 19, 2005. Pursuant to section 60.13 of 36 CFR part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service,1201 Eye St. NW., 8th floor, Washington DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by April 21, 2005.
A request for
National Park Service, Interior.
Notice of availability.
The National Park System Advisory Board completed a servicewide review of the process used by NPS to determine the cultural affiliation of human remains and other cultural items as required under the Native American Graves and Protection Repatriation Act (25 U.S.C. 3001
The National Park Service will accept comments from the public on the draft “Guidance for Compliance with the Native American Graves Protection and Repatriation Act by National Park Service Offices and Units—NPS Cultural Resource Management Guideline, Appendix R” for 90 days after publication of this notice.
To request a paper copy contact: Mary S. Carroll, Park NAGPRA Program Lead, National Park Service, 12795 W. Alameda Parkway, Lakewood CO 80225, 303-969-2300, 303-987-6675 (fax),
Submit comments via regular mail or express delivery service to the address. Comments also may be submitted via e-mail to the address above.
Mary S. Carroll, Park NAGPRA Program Lead, National Park Service, 12795 W. Alameda Parkway, Lakewood CO 80225, 303-969-2300, 303-987-6675 (fax),
A subcommittee of the National Park System Advisory Board (NPSAB), the Federally chartered board that advises NPS and the Secretary of the Interior on a wide range of matters, conducted a servicewide review of the process used by NPS to determine the cultural affiliation of human remains and other cultural items as required under NAGPRA.
The NPSAB provided Director Fran Mainella with the final report in June 2002. The report contains five recommendations that focus on the distinction between “cultural affiliation” and “traditionally associated peoples,” the precision of cultural affiliation determinations, and the consultation process. The recommendations are being implemented by revising and updating technical guidance on implementation of NAGPRA, specifically, Appendix R of the Cultural Resource Management Guideline under Director's Order 28.
The process of revising the guidelines has been undertaken by a group of National Park Service experts familiar with NAGPRA and representing a variety of perspectives on the implementation of NAGPRA. Members of the work group include staff familiar with regional NAGPRA coordination, Native American perspectives, park cultural resources, park management, and tribal liaison issues. As recommended by the NPSAB, tribes, Native Hawaiian organizations, and
United States International Trade Commission.
Institution of antidumping investigation and scheduling of a preliminary phase investigation.
The Commission hereby gives notice of the institution of an investigation and commencement of preliminary phase antidumping investigation No. 731-TA-1091 (Preliminary) under section 733(a) of the Tariff Act of 1930 (19 U.S.C. 1673b(a)) (the Act) to determine whether there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports from China of artists' canvas
For further information concerning the conduct of this investigation and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and B (19 CFR part 207).
Megan Spellacy (202-205-3190), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the investigation must be served on all other parties to the investigation (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
This investigation is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.12 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to remand the above-referenced investigation to the presiding administrative law judge (ALJ) for further proceedings and findings in light of claim construction determinations made by the Commission and an expected ruling by the U.S. Court of Appeals for the District of Columbia (D.C. Court of Appeals) in
Michael Liberman, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-3115. Copies of the public version of the IDs and all nonconfidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-2000. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. General information concerning the Commission may also be obtained by accessing its Internet server (
On December 19, 2003, the Commission instituted an investigation under section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, based on a complaint filed by Amkor Technology, Inc. (“Amkor”) alleging a violation of section 337 in the importation, sale for importation, and sale within the United States after importation of certain encapsulated integrated circuit devices and products containing same in connection with claims 1-4, 7, 17, 18 and 20-23 of U.S. Patent No. 6,433,277 (“the ‘277 patent”); claims 1-4, 7 and 8 of U.S. Patent No. 6,630,728 (“the ‘728 patent”); and claims 1, 2, 13 and 14 of U.S. Patent No. 6,455,356 (“the ‘356 patent”). 68 FR 70836 (December 19, 2003). The complainant named Carsem (M) Sdn Bhd; Carsem Semiconductor Sdn Bhd; and Carsem, Inc. (collectively, “Carsem”) as respondents.
The evidentiary hearing in this investigation was held from July 6 through July 30, 2004, and August 9 through August 11, 2004. On November 18, 2004, the presiding ALJ issued a final ID finding no violation of section 337. All parties to the investigation, including the Commission investigative attorney filed timely petitions for review of various portions of the final ID. Respondents designated their petition contingent upon the granting of any other petition for review or upon the Commission’s reviewing the ALJ's ID on its own motion pursuant to 19 CFR 210.44. All parties filed timely responses to the petitions for review.
On February 1, 2005, the Commission determined to review the final ID in its entirety. 70 FR 6454 (February 7, 2005). The Commission requested briefing, based on the evidentiary record, on the issue of claim interpretation only.
On February 15, 2005, respondent Carsem filed a motion and memorandum to strike complainant's initial written submission regarding the issues under review. On February 25, 2005, both complainant Amkor and the IA filed responsive pleadings in opposition to Carsem's motion.
Having reviewed the record in this investigation, including the ID and the written submissions of the parties, the Commission has determined to make various claim construction determinations with regard to the patent claims under review, and to remand the investigation to the ALJ for additional proceedings and findings in light of those claim constructions. The Commission has also directed the ALJ to reopen the evidentiary record to receive, and make findings based on, evidence that may become available after the D.C. Court of Appeals rules in
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.45 and 210.51 of the Commission's Rules of Practice and Procedure (19 CFR 210.45 and 210.51).
By order of the Commission.
Notice is hereby given that on March 23, 2005, a proposed First Amendment to Consent Decree in
On November 20, 1997, the court entered a Consent Decree regarding the Sealand Restoration Superfund Site in Lisbon, New York (“Site”). The Consent Decree required five Settling Defendants to implement the groundwater remedy that EPA selected in a 1995 Record of Decision (“ROD”) for the Site. In November 2001, EPA issued an Explanation of Significant Differences (“ESD”) which modified the selected groundwater remedy (requiring the construction of a permeable reactive barrier) and provided for implementation of institutional controls and the performance of a supplemental study. The proposed Amendment conforms the Decree to the ESD. In addition, the Amendment calls for a revised threshold above which the
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Amendment. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney, James Foley Bldg., 445 Broadway, Room 218, Albany 12207 (contact Civil Chief, Assistant U.S. Attorney James Woods), and at U.S. EPA Region II, 290 Broadway, 17th Floor, New York, New York, 10007-1866 (contact Assistant Regional Attorney James Doyle). During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site
Notice is hereby given that on March 24, 2005, a proposed Consent Decree in
Under the proposed Consent Decree, the Settling Defendants would convey 56.54 acres of riparian flood plain habitat to the Indiana Department of Natural Resources for replacement or acquisition of the equivalent of injured natural resources. In addition, the Settling Defendants would pay the United States and the State of Indiana $24,220.10 for costs incurred in assessing the damages to natural resources resulting from the discharges of oil, and $5,779.90 to be used for future restoration of the 56.64 acre property.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney, 10 West Market Street, Suite 2100, Indianapolis, IN 46204-3048, and at the U.S. Department of the Interior, Three Parkway Center, Room 385, Pittsburgh, PA 15220. During the public comment period, the Consent Decree also may be examined on the following Department of Justice Web site,
Under 28 CFR 50.7, notice is hereby given of a proposed settlement agreement,
The proposed settlement resolves CERCLA claims against respondent Vanderbilt Gold Corporation (“VGC”) and potential CERCLA claims against respondent Mineral, Metal & Mining Management Company (“4EM”) related to VGC's mining activities at the Morning Star Mine Site (“Site”), which is an inactive open mine pit located in the Mojave National Preserve, a unit of the National Park Service. DOI incurred response costs of approximately $1 million for a “time critical” removal action taken in response to the releases and threats of releases of hazardous substances at the Site. The proposed settlement requires respondents VGC and 4EM to: (1) Conduct a removal action at the Site, (2) reimburse DOI, over time, for approximately $1 million in past response costs, (3) pay DOI's future response costs, and (4) pay DOI $1 million, over time, for deposit into the DOI Natural Resource Damage Assessment and Restoration Fund to restore, replace, or acquire the equivalent of Park System Resources injured by VGC. In exchange, DOI agrees not to sue respondents for the work, past response costs, and future response costs.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed settlement. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, with a copy to Robert Mullaney, U.S. Department of Justice, 301 Howard Street, Suite 1050, San Francisco, CA 94105, and should refer to
During the public comment period, the proposed settlement agreement may be examined on the following Department of Justice Web site:
In requesting a copy from the Consent Decree Library, please enclose a check in the amount of $12.50 (25 cents per page reproduction cost) payable to the U.S. Treasury.
Under 28 CFR 50.7, notice is hereby given that on March 23, 2005, two proposed consent decrees in
In this action the United States is seeking injunctive relief and recovery of response costs incurred by the United States pursuant to the Compressive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. 9601
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed consent decrees. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The proposed consent decrees may be examined at the Office of the United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, and at U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103. During the public comment period, the proposed consent decrees may also be examined on the following Department of Justice Web site
By Notice dated September 16, 2004, and published in the
The company plans to manufacture small quantities of the listed controlled substances to produce isotope labeled standards for drug analysis.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Aldrich Chemical Company, Inc. to manufacture the listed basic classes of controlled substances is consistent with
By notice dated December 21, 2004 and published in the
The company plans to import the phenylacetone to manufacture amphetamine for distribution to its customers.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a) and determined that the registration of Cambrex Charles City, Inc. to import the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971, at this time. DEA has investigated Cambrex Charles City, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic class of controlled substance listed.
By Notice dated December 21, 2004, and published in the
By Notice dated December 21, 2004 and published in the
The company plans to import small quantities of the listed controlled substances for the manufacture of analytical reference standards.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. Sections 823(a) and 952(a) and determined that the registration of Cambrex Charles City, Inc. to import the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971, at this time. DEA has investigated Cambrex Charles City, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. Sections 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic class of controlled substance listed.
By notice dated July 21, 2004, and published in the
By notice dated November 8, 2004, and published in the
The company plans to import Phenylacetone to be used in the manufacture of amphetamine.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a) and determined that the registration of ISP Freetown Fine Chemicals to import the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971, at this time. DEA has investigated ISP Freetown Fine Chemicals to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic class of controlled substance listed.
By notice dated February 17, 2005, and published in the
The company plans to import the listed controlled substances for manufacture of controlled substances in bulk for distribution to its customers.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a) and determined that the registration of JFC Technologies, LLC to import the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971, at this time. DEA has investigated JFC Technologies, LLC to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic class of controlled substance listed.
The Notice dated December 21, 2004, and published in the
Pursuant to 21 U.S.C. 958(i), the Attorney General shall, prior to issuing a registration under this Section to a bulk manufacturer of a controlled substance in Schedule I or II and prior to issuing a registration under 21 U.S.C. 952 (a) (2) (B) authorizing the importation of such a substance, provide manufacturers holding registrations for the bulk manufacture of the substance an opportunity for a hearing.
Therefore, in accordance with 21 CFR 1301.34(a), this is notice that on February 1, 2005, Penick Corporation, 158 Mount Olivet Avenue, Newark, New Jersey 07114, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as an importer of the basic classes of controlled substances listed in Schedules II:
The company plans to import the listed controlled substances to manufacturer bulk controlled substances and non-controlled substance flavor extracts.
Any manufacturer who is presently, or is applying to be, registered with DEA
Any such written comments or objections being sent via regular mail may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, Attention: DEA Federal Register Representative, Liaison and Policy Section (ODL); or any being sent via express mail should be sent to DEA Headquarters, Attention: DEA Federal Register Representative/ODL, 2401 Jefferson-Davis Highway, Alexandria, Virginia 22301; and must be filed no later than May 6, 2005.
This procedure is to be conducted simultaneously with and independent of the procedures described in 21 CFR 1301.34(b), (c), (d), (e) and (f). As noted in a previous notice published in the
Pursuant to section 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on February 8, 2005, Polaroid Corporation, 1265 Main Street, Building W6, Waltham, Massachusetts 02454, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of 2,5-Dimethoxyamphetamine (7396), a basic class of controlled substance listed in Schedule I.
The company plans to manufacture the listed controlled substance in bulk for conversion into non-controlled substances.
Any other such applicant and any person who is presently registered with DEA to manufacture such a substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections being sent via regular mail may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, Attention: DEA Federal Register Representative, Liaison and Policy Section (ODL); or any being sent via express mail should be sent to DEA Headquarters, Attention: DEA Federal Register Representative/ODL, 2401 Jefferson-Davis Highway, Alexandria, Virginia 22301; and must be filed no later than June 6, 2005.
By notice dated February 23, 2005, and published in the
Pursuant to 21 U.S.C. 958(i), the Attorney General shall, prior to issuing a registration under this Section to a bulk manufacturer of a controlled substance in Schedule I or II and prior to issuing a regulation under 21 U.S.C. 952(a)(2)(B) authorizing the importation of such a substance, provide manufacturers holding registrations for the bulk manufacture of the substance an opportunity for a hearing.
Therefore, in accordance with 21 CFR 1301.34(a), this is notice that on January 7, 2005, Sigma Aldrich Company, Subsidiary of Sigma-Aldrich Corporation, 3500 Dekalb Street, St. Louis, Missouri 63118, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as an importer of the basic classes of controlled substances listed in Schedule I and II:
The company plans to import the listed controlled substances for drug testing and analysis.
Any manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic classes of controlled substances may file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43 and in such form as prescribed by 21 CFR 1316.47.
Any such written comments or objections being sent via regular mail may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, Attention: DEA Federal Register Representative, Liaison and Policy Section (ODL); or any being sent via express mail should be sent to DEA Headquarters, Attention: DEA Federal Register Representative/ODL, 2401 Jefferson-Davis Highway, Alexandria, Virginia 22301; and must be filed no later than May 6, 2005.
This procedure is to be conducted simultaneously with and independent of the procedures described in 21 CFR 1301.34(b), (c), (d), (e) and (f). As noted in a previous notice published in the
Pursuant to 21 U.S.C. 958(i), the Attorney General shall, prior to issuing a registration under this Section to a bulk manufacturer of a controlled substance in Schedule I or II and prior to issuing a regulation under 21 U.S.C. 952(a)(2)(B) authorizing the importation of such a substance, provide manufacturers holding registrations for the bulk manufacture of the substance an opportunity for a hearing.
Therefore, in accordance with 21 CFR 1301.34(a), this is notice that on January 26, 2005, Stepan Company, Natural Products Department, 100 W. Hunter Avenue, Maywood, New Jersey 07607, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as an importer of Coca Leaves (9040), a basic class of controlled substance listed in Schedule II.
The company plans to import the listed controlled substance for the manufacture of bulk controlled substances and distribution to its customers.
Any manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic classes of controlled substances may file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43 and in such form as prescribed by 21 CFR 1316.47.
Any such written comments or objections being sent via regular mail may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, Attention: DEA
This procedure is to be conducted simultaneously with and independent of the procedures described in 21 CFR 1301.34(b), (c), (d), (e) and (f). As noted in a previous notice published in the
Pursuant to Section 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on February 16, 2005, Varian, Inc., Lake Forest, 25200 Commercentre Drive, Lake Forest, California 92630-8810, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the basic classes of controlled substances listed in Schedules II:
The company plans to manufacture small quantities of the listed controlled substances for use in diagnostic products.
Any other such applicant and any person who is presently registered with DEA to manufacture such a substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections being sent via regular mail may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, Attention: DEA
Notice.
The Department of Labor (Department), 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 continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA 95). 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 Employee Benefits Security Administration is soliciting comments concerning the proposed extension of a currently approved collection of information, Prohibited Transaction Class Exemption 86-128 for certain transactions involving employee benefit plans and securities broker-dealers.
A copy of the proposed information collection request (ICR) can be obtained by contacting the office listed below in the
Written comments must be submitted to the office listed in the
Interested parties are invited to submit written comments regarding the collection of information. Send comments to Mr. Gerald B. Lindrew, Office of Policy and Research, U.S. Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue, NW., Room N-5647, Washington, DC 20210. Telephone: (202) 693-8410. Fax: (202) 693-4745 (These are not toll-free numbers).
Prohibited Transaction Class Exemption 86-128 permits persons who serve as fiduciaries for employee benefit plans to effect or execute securities transactions on behalf of employee benefit plans. The exemption also allows sponsors of pooled separate accounts and other pooled investment funds to use their affiliates to effect or execute securities transactions for such accounts in order to recapture brokerage commissions for benefit of employee benefit plans whose assets are maintained in pooled separate accounts managed by the insurance companies. This exemption provides relief from certain prohibitions in section 406(b) of the Employee Retirement Income Security Act of 1974 (ERISA) and from the taxes imposed by section 4975(a) and (b) of the Internal Revenue Code of 1986 (the Code) by reason of Code section 4975(c)(1)(E) or (F).
In order to insure that the exemption is not abused, that the rights of participants and beneficiaries are protected, and that the exemption's conditions are being complied with, the Department has included in the exemption five information collection requirements. The first requirement is written authorization executed in advance by an independent fiduciary of the plan whose assets are involved in the transaction with the broker-fiduciary. The second requirement is, within three months of the authorization, the broker-fiduciary furnish the independent fiduciary with any reasonably available information necessary for the independent fiduciary to determine whether an authorization should be made. The information must include a copy of the exemption, a form for termination, and a description of the broker-fiduciary's brokerage placement practices. The third requirement is that the broker-fiduciary must provide a termination form to the independent fiduciary annually so that the independent fiduciary may terminate the authorization without penalty to the plan; failure to return the form constitutes continuing authorization. The fourth requirement is for the broker-fiduciary to report all transactions to the independent fiduciary, either by confirmation slips or through quarterly reports. The fifth requirement calls for the broker-fiduciary to provide an annual summary of the transactions. The annual summary must contain all security transaction-related charges incurred by the plan, the brokerage placement practices, and a portfolio turnover ratio.
The Department is particularly interested in comments that:
• 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 is requesting an extension of the currently approved ICR pertaining to Prohibited Transaction Class Exemption 86-128 for certain transactions involving employee benefit plans and securities broker-dealers. The Department is not proposing or implementing changes to the existing ICR at this time.
Comments submitted in response to this request will be summarized and/or
Employee Benefits Security Administration, Department of Labor.
Notice of proposed amendment to PTE 2002-51.
This document contains a notice of pendency before the Department of Labor (the Department) of a proposed amendment to PTE 2002-51 (67 FR 70623 November 25, 2002). PTE 2002-51 is a class exemption that provides relief from certain prohibited transaction restrictions imposed by section 4975 of the Internal Revenue Code (the Code) of 1986 for certain eligible transactions identified in the Department's Voluntary Fiduciary Correction (VFC) Program, which was adopted on March 28, 2002. This exemption is being proposed in conjunction with the Department's Amendment and Restatement of the VFC Program (revised VFC Program), which is being published simultaneously in this issue of the
Written comments and requests for a public hearing on the proposed amendment must be received by the Department by June 6, 2005.
All written comments and requests for a public hearing (preferably three copies) concerning the proposed amendment should be sent to: U.S. Department of Labor, Employee Benefits Security Administration, Room N-5649, 200 Constitution Avenue, NW., Washington, DC 20210, (Attention: Amendment to the VFC Program Exemption D-11261). Comments and requests for a hearing alternatively may be sent by fax to (202) 219-0204 or submitted electronically to
Brian J. Buyniski, Office of Exemption Determinations, Employee Benefits Security Administration, U.S. Department of Labor, Room N-5649, 200 Constitution Avenue, NW., Washington, DC 20210, (202) 693-8545 (this is not a toll free number).
Notice is hereby given of the pendency before the Department of a proposed amendment to PTE 2002-51. PTE 2002-51 provides relief from the sanctions resulting from the application of section 4975(a) and (b) of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code. The proposed amendment would expand the relief under the exemption to additional transactions included in the revised VFC Program. The Department is proposing to amend PTE 2002-51 on its own motion pursuant to section 4975(c)(2) of the Code, and in accordance with the procedures set forth in 29 CFR 2570, subpart B (55 FR 32836, August 10, 1990).
Under Executive Order 12866, the Department must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive Order and subject to review by the Office of Management and Budget (OMB). Under section 3(f) of the Executive Order, a “significant regulatory action” is an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. OMB has determined that this proposed amendment is not a “significant regulatory action” under Executive Order 12866, section 3(f). Accordingly, an assessment of the potential costs and benefits under section 6(a)(3) of that order is not required. In order to better inform the public, the Department has, however, included a brief analysis of the applicable costs and benefits of the proposed amendment.
PTE 2002-51 provides relief from the sanctions resulting from the application of section 4975(a) and (b) of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code. In general, the exemption enhances the benefits of participation in the VFC Program by granting relief from excise taxes under section 4975 for breaches of fiduciary duty that are prohibited transactions. The class exemption will have positive economic effects by eliminating such excise taxes and promoting increased participation in the VFC Program. The purpose of the VFC Program is to encourage the correction of breaches of fiduciary duty, resulting in the recovery of lost earnings or profits for the benefit of plan participants and beneficiaries.
The Department has assumed that not all Plan Officials that apply to the VFC Program will necessarily take advantage of the excise tax relief provided under the exemption, either by choice or because the corrected transaction is not an eligible transaction to which this exemption applies. The Department has assumed that as many as one half of all applicants who take the opportunity to voluntarily correct a violation under the Program, or 350 Plan Officials annually, will choose to avail themselves of the opportunity for excise tax relief.
This amendment to PTE 2002-51 is proposed in connection with the Amendment and Restatement of the VFC Program (revised VFC Program), which is published in this issue of the
The proposed addition of this eligible transaction may increase participation in the VFC Program, and utilization of the exemption. However, the Department is unable to estimate the impact of these changes because participation in the Program has steadily increased without any revisions to the Program such as those adopted today. Due to a lack of information regarding the substantial increases, it is not possible to identify factors that influence the decision to participate or to make use of the exemption, or to predict how this proposed amendment would influence future participation.
Applicants must meet all of the applicable requirements of the revised VFC Program and must have received a no action letter from EBSA with respect to the eligible transaction at issue. Additional costs will accrue to applicants seeking relief under the VFC Program and this exemption because of the notice requirements. The cost of preparing and distributing such notices is estimated to be about $31,000 per year based on the projected use of the exemption by 350 applicants. This estimate does not take into account any increase related to the additional eligible transaction. This cost is accounted for in burden estimates submitted to and approved by OMB pursuant to the Paperwork Reduction Act (PRA).
The Amended and Restated Voluntary Fiduciary Correction Program includes a revision to its information collection provisions. Accordingly, the revisions have been submitted to OMB for review and approval under the PRA. Because the exemption is used in connection with the Program, and for ease of public review, the burden of the Information Collection Request (ICR) in the VFC Program is combined with the burden of the information collection provisions of the exemption for purposes of accounting for burden under the PRA. These information collection provisions are currently approved under OMB control number 1210-0118. That approval is scheduled to expire on December 31, 2006. Because the information collection provisions of this proposed exemption are unchanged from those of existing PTE 2002-51, no submission is made to OMB in connection with these proposed amendments.
Title I of ERISA, which establishes certain standards of conduct for fiduciaries of employee benefit plans covered by ERISA, includes provisions prohibiting fiduciaries from causing a plan to engage in certain classes of transactions with persons defined as parties in interest. Similarly, Title II of ERISA prohibits plans described in section 4975(e)(1) of the Code from engaging in certain classes of transactions with persons defined under the Code as disqualified persons. Generally, such transactions are subject to taxation under section 4975 of the Code.
The VFC Program was adopted by the Department on a permanent basis in March 2002.
(A) The failure to transmit participant contributions to a pension plan within the time frames described in the Department's regulations at 29 CFR 2510.3-102 and/or the failure to transmit participant loan repayments to a pension plan within a reasonable time after withholding or receipt by the employer.
(B) The making of a loan by a plan at a fair market interest rate to a party in interest
(C) The purchase or sale of an asset (including real property) between a plan and a party in interest at fair market value.
(D) The sale of real property to a plan by the employer and leaseback of such property to the employer, at fair market value and fair market rental value, respectively.
Based on growing public utilization and over two years experience in administering the original VFC Program, EBSA has decided to amend the Program, effective immediately upon publication of a notice which is being published simultaneously in this issue of the
To the extent that the original purchase of an asset by a plan where the asset was determined to be illiquid as described under the revised VFC Program was from a person defined as a party in interest under section 3(14) of ERISA and a disqualified person under section 4975(e)(2) of the Code, the transactions would violate the prohibited transaction rules under both Title I of ERISA and section 4975 of the Code. Moreover, as distinguished from the eligible transactions covered in the VFC Program
The revised VFC Program provides relief for both the original acquisition of the asset by the plan that was determined to be illiquid under the revised VFC Program, as well as the correction involving the sale of such asset to a party in interest, provided all of the requirements of the revised VFC Program are met. The Department has determined that it would be appropriate to amend PTE 2002-51 to provide additional exemptive relief from the sanctions imposed under section 4975 of the Code in conjunction with the revision of the VFC Program.
PTE 2002-51 provided limited exemptive relief from the excise taxes imposed under section 4975 of the Code for certain eligible transactions identified in the VFC Program. The proposed amendment to PTE 2002-51 will provide limited relief for an additional eligible transaction identified in the revised VFC Program. Specifically, the proposed amendment to PTE 2002-51 will cover the purchase of an asset by a plan where the asset has been determined to be illiquid as described in the revised VFC Program (including real property) from a party in interest at no greater than fair market value at that time, and/or the subsequent sale of such asset to a party in interest provided the plan receives the correction amount as described in Section 5 of the revised VFC Program.
The Department notes that all the safeguards already embodied in PTE 2002-51 must be met under the amended class exemption. With respect to the additional eligible transaction identified above, the amendment includes a requirement that the plan pay no brokerage fees or commissions in connection with the sale of the asset to the party in interest.
The additional eligible transaction may be illustrated by the following example:
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person with respect to a plan from certain other provisions of ERISA and the Code, including any prohibited transaction provisions to which the exemption does not apply, the requirement that all assets of an employee benefit plan be held in trust by one or more trustees, and the general fiduciary responsibility provisions of ERISA which require, among other things, that a fiduciary discharge his or her duties respecting the plan solely in the interests of the participants and beneficiaries of the plan and in a prudent fashion; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries.
(2) The proposed amendment, if granted, will not extend to transactions prohibited under section 4975(c)(1)(F) of the Code.
(3) Before this amendment may be granted under section 4975(c)(2) of the Code, the Department must find that the amendment is administratively feasible, in the interests of plans and their participants and beneficiaries, and protective of the rights of participants and beneficiaries of such plans.
(4) The proposed amendment, if granted, will be supplemental to, and not in derogation of other provisions of ERISA and the Code, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction.
(5) If granted, the proposed amendment will be applicable to a transaction only if the conditions specified in the class exemption are satisfied.
All interested persons are invited to submit written comments or requests for a public hearing on the proposed amendment to the address above and within the time period set forth above. All comments received will be made part of the record and will be available for public inspection at the above address.
Under section 4975(c)(2) of the Code and in accordance with the procedures set forth in 29 CFR part 2570, subpart B (55 FR 32836, August 10, 1990), the Department proposes to amend Sections I and II of PTE 2002-51 as set forth below.
The sanctions resulting from the application of section 4975(a) and (b) of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to the following eligible transactions described in section 7 of the Voluntary Fiduciary Correction (VFC) Program, as amended and restated, published simultaneously in this issue of the
A. Failure to transmit participant contributions to a pension plan within the time frames described in the Department's regulation at 29 CFR section 2510.3-102. (
B. Loan at a fair market interest rate to a party in interest with respect to a plan. (
C. Purchase or sale of an asset (including real property) between a plan and a party in interest at fair market value. (
D. Sale of real property to a plan by the employer and the leaseback of the property to the employer, at fair market value and fair market rental value, respectively. (
E. Purchase of an asset by a plan where the asset has been determined to be illiquid (including real property) as described under the revised VFC Program from a party in interest at no greater than fair market value at that time, and/or the subsequent sale of such asset to a party in interest, provided the plan receives the correction amount as described in section 5(b) of the Program. (
A. With respect to a transaction involving participant contributions or loan repayments to pension plans described in Section I.A., the contributions or repayments were transmitted to the pension plan not more than 180 calendar days from the date the amounts were received by the employer (in the case of amounts that a participant or beneficiary pays to an employer) or the date the amounts otherwise would have been payable to the participant in cash (in the case of amounts withheld by an employer from a participant's wages).
B. With respect to the transactions described in Sections I.B., I.C., I.D., or I.E., the plan assets involved in the transaction, or series of related transactions, did not, in the aggregate, exceed 10 percent of the fair market value of all the assets of the plan at the time of the transaction.
C. The fair market value of any plan asset involved in a transaction described in Sections I.C., I.D., or I.E. was determined in accordance with section 5 of the VFC Program.
D. The terms of a transaction described in Sections I.B., I.C., I.D., or I.E., were at least as favorable to the plan as the terms generally available in arm's-length transactions between unrelated parties.
E. With respect to any transaction described in Section I, the transaction was not part of an agreement, arrangement or understanding designed to benefit a party in interest.
F. (1) With respect to any transaction described in Section I, the applicant has not taken advantage of the relief provided by the VFC Program and this exemption for a similar type of transaction(s) identified in the current application during the period which is three years prior to submission of the current application.
(2) Notwithstanding the foregoing, Section II.F.(1) shall not apply to an applicant provided that:
(a) The applicant was a broker-dealer registered under the Securities Exchange Act of 1934, a bank supervised by the United States or a State thereof, a broker-dealer or bank subject to foreign government regulation, an insurance company qualified to do business in a State, or an affiliate thereof;
(b) The applicant was a party in interest (including a fiduciary) solely by reason of providing services to the plan or solely by reason of a relationship to such service provider described in section 3(14)(F), (G), (H) or (I) of ERISA (and/or the corresponding provisions of section 4975 of the Code);
(c) Neither the applicant nor any affiliate (i) was a fiduciary (within the meaning of section 3(21)(A) of ERISA) with respect to the assets of the plan involved in the transaction and (ii) used its discretion to cause the plan to engage in the transaction;
(d) Individuals acting on behalf of the applicant had no actual knowledge or reason to know that the transaction was not exempt pursuant to a statutory or administrative exemption under ERISA and/or the Code; and
(e) Prior to the transaction, the applicant established written policies and procedures that were reasonably designed to ensure compliance with the prohibited transaction rules and the applicant engaged in periodic monitoring for compliance.
G. With respect to a transaction involving a sale of an illiquid asset under the VFC Program by the plan to a party in interest described in Section I.E., the plan paid no brokerage fees, or commissions in connection with the sale of the asset.
A. The applicant has met all of the applicable requirements of the revised VFC Program.
B. EBSA has issued a no action letter to the applicant pursuant to the revised VFC Program with respect to a transaction described in Section I.
A. Written notice of the transaction(s) for which the applicant is seeking relief pursuant to the revised VFC Program, and this exemption, and the method of correcting the transaction, was provided to interested persons within 60 calendar days following the date of the submission of an application under the revised VFC Program. A copy of the notice was provided to the appropriate Regional Office of the United States Department of Labor, Employee Benefits Security Administration within the same 60-day period, and the applicant indicated the date upon which notice was distributed to interested persons. Plan assets were not used to pay for the notice. The notice included an objective description of the transaction and the steps taken to correct it, written in a manner reasonably calculated to be understood by the average Plan participant or beneficiary. The notice provided for a period of 30 calendar days, beginning on the date the notice was distributed, for interested persons to provide comments to the appropriate Regional Office. The notice included the address and telephone number of such Regional Office.
B. Notice was given in a manner that was reasonably calculated, taking into consideration the particular circumstances of the plan, to result in the receipt of such notice by interested persons, including but not limited to posting, regular mail, or electronic mail, or any combination thereof. The notice informed interested persons of the applicant's participation in the revised VFC Program as amended and intention of availing itself of relief under the exemption.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act (FACA), Pub. L. 92-463, as amended,
Friday, April 22, 2005, 11 a.m. to 3 p.m.
National Aeronautics and Space Administration, 300 E Street, SW., Room 9H40, Washington, DC 20546.
Ms. Ermerdene Lee, of the Chief Financial Officer's Office, National Aeronautics and Space Administration, Washington, DC 20546. (202) 358-4529, e-mail
The meeting will be open to the public up to the capacity of the room. The agenda for the meeting includes the following topics:
Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID, before receiving an access badge. Foreign nationals attending this meeting will be required to provide the following information no less than 3 working days prior to the meeting: full name; gender, date/place of birth; citizenship; visa/green card information (number, type, expiration date); passport information (number, country, expiration date); employer/affiliation information (name of institution, address, country, phone); title/position of attendee. To expedite admittance, attendees with U.S. citizenship can provide identifying information in advance by contacting Ermerdene Lee via e-mail at elee1@hq.nasa.gov or by telephone at (202) 358-4529. It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of continuing value in the National Archives of the United States and the destruction, after a specified period, of records lacking administrative, legal, research, or other value. Notice is published for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a).
Requests for copies must be received in writing on or before May 23, 2005. Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepare appraisal memorandums that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments.
You may request a copy of any records schedule identified in this notice by contacting the Life Cycle Management Division (NWML) using one of the following means: Mail: NARA (NWML), 8601 Adelphi Road, College Park, MD 20740-6001.
E-mail:
FAX: 301-837-3698.
Requesters must cite the control number, which appears in parentheses after the name of the agency which submitted the schedule, and must provide a mailing address. Those who desire appraisal reports should so indicate in their request.
Paul M. Wester, Jr., Director, Life Cycle Management Division (NWML), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. Telephone: 301-837-3120. E-mail:
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval, using the Standard Form (SF) 115, Request for Records Disposition Authority. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an agency. This notice provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction). It also includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. Further information about the disposition process is available on request.
1. Department of Education, Office for Civil Rights, (N1-441-05-1, 9 items, 6 temporary items). Civil rights compliance reports submitted by state vocational education agencies, reference copies of electronic master files of elementary and secondary school civil rights surveys, and electronic copies of documents created using electronic mail and word processing. Proposed for permanent retention are such records as
2. Department of Housing and Urban Development, Office of Public and Indian Housing (N1-207-04-1, 24 items, 19 temporary items). Inputs, outputs, work files, and other records associated with an electronic system that contains statistical information concerning low income public housing and housing for Native Americans. Master files and system documentation are proposed for permanent retention.
3. Department of Justice, Federal Bureau of Prisons (N1-129-04-6, 10 items, 8 temporary items). Inputs and outputs of the Office of Research and Evaluation's Key Indicators/Strategic Support System, which is used to monitor and track institutional performance and support policy formulation and policy impact assessment. Proposed for permanent retention are the system master files and the system documentation.
4. Department of Justice, Federal Bureau of Prisons (N1-129-04-7, 4 items, 2 temporary items). Inputs and outputs of an electronic information system maintained by the Information, Policy, and Public Affairs Division which is used to track individual inmates throughout the agency's facilities. Proposed for permanent retention are the system master files and the system documentation.
5. Department of State, Bureau of Educational and Cultural Affairs (N1-59-05-6, 11 items, 6 temporary items). Exchange proposals, copies of treaties, and personnel files maintained by the J. William Fulbright Foreign Scholarship Board. Also included are electronic copies of records created using electronic mail and word processing. Proposed for permanent retention are recordkeeping copies of meeting files, membership files, reports, general subject files, and country files.
6. Department of Transportation, Federal Aviation Administration (N1-237-04-3, 31 items, 25 temporary items). Records relating to the registration, recordation, and leasing of aircraft. Included are paper aircraft registration and recordation files that have been imaged, backup copies of signature authorization files, export certificate of airworthiness files, engine propeller and spare parts location recordation files, dealer's aircraft registration certificate files, truth-in-leasing files, foreign aircraft leases files, finding aids, and summary reports with statistical data. Also included are electronic copies of records created using electronic mail and word processing.
Proposed for permanent retention are recordkeeping copies of aircraft registration and recordation files, signature authorization files, finding aids, summary reports with statistical data, and annual snapshot of the Aircraft Registration Master File.
7. Department of Transportation, Federal Motor Carrier Safety Administration (N1-557-05-12, 12 items, 9 temporary items). Records accumulated by the Office of Communications, including briefing materials, budget background records, chronological files, copies of press releases, report files, copies of speeches, and working papers. Also included are electronic copies of records created using electronic mail and word processing. Proposed for permanent retention are recordkeeping copies of press releases, agency-wide publications, and speech files. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium.
8. Department of the Treasury, Bureau of Public Debt (N1-53-05-3, 4 items, 4 temporary items). Records relating to mail management and external audits, including electronic copies of records created using electronic mail and word processing.
9. National Aeronautics and Space Administration, Agency-wide (N1-255-04-3, 13 items, 12 temporary). Files relating to projects that pertain to space flight, aerospace technology research, and basic or applied scientific research that lack historical significance. Also included are routine records relating to historically significant projects as well as files relating to these projects that are not required for documenting the history of the project and/or agency programs, but have operational value to the agency throughout the program or project life cycle. Also included are electronic copies of records created using electronic mail and word processing. Proposed for permanent retention are recordkeeping copies of files relating to historically significant projects that must be retained to document the history of the project and/or agency programs. The schedule provides criteria for identifying historically significant projects (
In accordance with Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
The U.S. Nuclear Regulatory Commission (NRC or Commission) has received an application, dated March 16, 2005, from Nuclear Management Company, LLC, filed pursuant to Section 104b (DPR-22) of the Atomic Energy Act of 1954, as amended, and 10 CFR part 54, to renew the operating license for the Monticello Nuclear Generating Plant. Renewal of the license would authorize the applicant to operate the facility for an additional 20-year period beyond the period specified in the current operating license. The current operating license for the Monticello Nuclear Generating Plant (DPR-22) expires on September 8, 2010. The Monticello Nuclear Generating Plant is a Boiling Water Reactor designed by General Electric. The unit is located near Monticello, MN. The acceptability of the tendered application for docketing, and other matters including an opportunity to request a hearing, will be the subject of subsequent
Copies of the application are available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, 20582 or electronically from the NRC's Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room under accession number ML050880237. The ADAMS Public Electronic Reading Room is accessible from the NRC Web site at
A copy of the license renewal application for the Monticello Nuclear Generating Plant is also available to local residents near the Monticello Nuclear Generating Plant at the Monticello Public Library, 200 West 6th Street, Monticello, MN 55362.
For the Nuclear Regulatory Commission.
Individuals wishing to address the hearing orally must provide advance notice to OPIC's Corporate Secretary no later than 5 p.m., Tuesday, April 19, 2005. The notice must include the individual's name, title, organization, address, and telephone number, and a concise summary of the subject matter to be presented.
Oral presentations may not exceed ten (10) minutes. The time for individual presentations may be reduced proportionately, if necessary, to afford all participants who have submitted a timely request to participate an opportunity to be heard.
Participants wishing to submit a written statement for the record must submit a copy of such statement to OPIC's Corporate Secretary no later than 5 p.m., Tuesday, April 19, 2005. Such statements must be typewritten, double-spaced, and may not exceed twenty-five (25) pages.
Upon receipt of the required notice, OPIC will prepare an agenda for the hearing identifying speakers, setting forth the subject on which each participant will speak, and the time allotted for each presentation. The agenda will be available at the hearing.
A written summary of the hearing will be compiled, and such summary will be made available, upon written request to OPIC's Corporate Secretary, at the cost of reproduction.
Information on the hearing may be obtained from Connie M. Downs at (202) 336-8438, via facsimile at (202) 218-0136, or via e-mail at
Notice is hereby given that the following filing(s) has/have been made with the Commission pursuant to provisions of the Act and rules promulgated under the Act. All interested persons are referred to the application(s) and/or declaration(s) for complete statements of the proposed transaction(s) summarized below. The application(s) and/or declaration(s) and any amendment(s) is/are available for public inspection through the Commission's Branch of Public Reference.
Interested persons wishing to comment or request a hearing on the application(s) and/or declaration(s) should submit their views in writing by April 25, 2005, to the Secretary, Securities and Exchange Commission, Washington, DC 20549-0609, and serve a copy on the relevant applicant(s) and/or declarant(s) at the address(es) specified below. Proof of service (by affidavit or, in the case of an attorney at law, by certificate) should be filed with the request. Any request for hearing should identify specifically the issues of facts or law that are disputed. A person who so requests will be notified of any hearing, if ordered, and will receive a copy of any notice or order issued in the matter. After April 25, 2005, the application(s) and/or declaration(s), as filed or as amended, may be granted and/or permitted to become effective.
PNM Resources, Inc. (“PNM Resources”), Alvarado Square, Albuquerque, NM 87158, a registered holding company, has filed an application-declaration (“Application”) under sections 6(a), 7, 8, 9(a), 10, 11, and 12(e) of the Act and rules 51, 54 and 62-65 under the Act.
PNM Resources became an exempt public utility holding company on December 31, 2001, and conducts its operations consistent with the order of the New Mexico Public Regulation Commission which authorized the holding company structure. Except for certain corporate support services provided to its subsidiaries at cost pursuant to that order, PNM Resources conducts no business operations other than as a holding company. PNMR Services Company (“Services”) is a subsidiary service company, which provides services at cost to the subsidiaries of PNM Resources. PNM Resources filed a notice of registration under the Act on December 30, 2004, and transferred its service functions to Services on January 1, 2005.
PNM Resources' only public utility company subsidiary is Public Service Company of New Mexico (“PNM”), a New Mexico corporation. PNM is an electric and gas public utility company. It is engaged in the generation, transmission, and distribution of electric energy at retail in the State of New Mexico and makes sales for resale (“wholesale” sales) of electricity in interstate commerce. PNM is also engaged in the distribution of natural gas in the State of New Mexico, which includes some off-system wholesale sales of natural gas.
PNM Resources proposes to acquire all of the outstanding voting securities of TNP Enterprises, Inc. (“TNP Enterprises”), a public utility holding company claiming exemption by rule 2 under the Act (the acquisition is referred to hereafter as the “Transaction”). TNP Enterprises has subsidiary electric utility operations in Texas and New Mexico conducted by Texas-New Mexico Power Company (“TNMP”), its public utility subsidiary. In connection with the Transaction, PNM Resources is requesting authorization to amend its Restated Articles of Incorporation (“Restated Articles”) and to solicit proxies from its shareholders to approve such amendment at its annual meeting of shareholders to be held on May 17, 2005.
In order to finance a portion of the acquisition cost, PNM Resources will issue and sell 4,000,000 units of its 6.625% Hybrid Income Term Security Units (the “Units”) to Cascade Investment, L.L.C. (“Cascade”), a limited liability company formed under the laws of the State of Washington, in consideration for $100,000,000. Each Unit will have a stated amount of $25.00. The proceeds of the sale of the Units will be used by PNM Resources to finance a portion of the cash consideration paid in the Transaction and for refinancing the debt and preferred securities of TNP Enterprises. The Units will be sold pursuant to the terms of a Unit Purchase Agreement, dated August 13, 2004, between PNM Resources and Cascade (the “UPA”). Each Unit consists of two components, (i) a forward purchase contract which obligates the holder (Cascade or an affiliate of Cascade) to purchase and PNM Resources to sell, no later than February 16, May 16, August 16 or November 16 first following the third anniversary of the issuance of the Units, a specified number of shares of PNM Resources common stock (“Common Shares”) (subject to anti-dilution adjustments), and (ii) a
Under the UPA, Cascade (or any Cascade affiliate holder of the Units) shall have the right to purchase PNM Resources' Convertible Preferred Stock, Series A (the “Preferred Shares”)
Also under the UPA, PNM Resources is obligated to seek shareholder approval for an amendment to the Restated Articles that would confer upon holders of the Preferred Shares certain voting rights in addition to those voting rights conferred by law. Specifically, under the Restated Articles, as proposed to be amended, the Preferred Shares, voting as a single class with PNM Resources' common stock, will be entitled to the number of votes to which the shares of common stock into which the Preferred Shares are convertible are entitled to vote on all matters required to be submitted to a vote of common stockholders, other than the right to vote in the election of directors, provided that such voting rights are exercisable by the holders of Preferred Shares only if approved and permitted by the Commission.
The proposed amendment to PNM Resources' Restated Articles to confer the additional (
It appears to the Commission that PNM Resources' Application regarding the proposed solicitation of proxies should be permitted to become effective immediately under rule 62(d).
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The ISE is proposing to amend its rules to trade options on full and reduced values of three broad-based indexes, the ISE 250 Index, the ISE 100 Index and the ISE 50 Index. Options on these indexes would be cash-settled and would have European-style exercise provisions. The text of the proposed rule change is available on the ISE's Web site (
01. The reporting authorities designated by the Exchange in respect of each index underlying an index options contract traded on the Exchange are as provided in the chart below.
(a) Rule 412 generally shall govern position limits for broad-based index options, as modified by this Rule 2004. There may be no position limit for certain Specified (as provided in Rule 2000) broad-based index options contracts. All other broad-based index options contracts shall be subject to a contract limitation fixed by the Exchange, which shall not be larger than the limits provided in the chart below.
(a) General.
(4) “European-Style Exercise.” The following European-style index options, some of which may be A.M.-settled as provided in paragraph (a)(5), are approved for trading on the Exchange:
(i) S&P SmallCap 600 Index
(ii) Morgan Stanley Technology Index
(iii) S&P MidCap 400 Index
(iv) Reduced Value S&P 1000 Index
(v) Micro S&P 1000 Index
(vi) Full-size Nasdaq 100 Index
(vii) Mini Nasdaq 100 Index
(5) A.M.-Settled Index Options. The last day of trading for A.M.-settled index options shall be the business day preceding the last day of trading in the underlying securities prior to expiration. The current index value at the expiration of an A.M.-settled index option shall be determined, for all purposes under these Rules and the Rules of the Clearing Corporation, on the last day of trading in the underlying securities prior to expiration, by reference to the reported level of such index as derived from first reported sale (opening) prices of the underlying securities on such day, except that:
(i) In the event that the primary market for an underlying security does not open for trading on that day, the
(ii) In the event that the primary market for an underlying security is open for trading on that day, but that particular security does not open for trading on that day, the price of that security, for the purposes of calculating the current index value at expiration, shall be the last reported sale price of the security.
The following A.M.-settled index options are approved for trading on the Exchange:
(i) S&P SmallCap 600 Index
(ii) Morgan Stanley Technology Index
(iii) S&P MidCap 400 Index
(iv) Reduced Value S&P 1000 Index
(v) Micro S&P 1000 Index
(vi) Full-size Nasdaq 100 Index
(vii) Mini Nasdaq 100 Index
(c) Procedures for Adding and Deleting Strike Prices. The procedures for adding and deleting strike prices for index options are provided in Rule 504, as amended by the following:
(1) The interval between strike prices will be no less than $5.00; provided, that in the case of the following classes of index options, the interval between strike prices will be no less than $2.50:
(i) S&P SmallCap 600, if the strike price is less than $200.00
(ii) Morgan Stanley Technology Index, if the strike price is less than $200.00
(iii) S&P MidCap 400 Index, if the strike price is less than $200.00
(iv) Reduced Value S&P 1000 Index, if the strike price is less than $200.00
(v) Micro S&P 1000 Index, if the strike price is less than $200.00
(vi) Full-size Nasdaq 100 Index, if the strike price is less than $200.00
(vii) Mini Nasdaq 100 Index, if the strike price is less than $200.00
In its filing with the Commission, the ISE included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change, as amended. The text of these statements may be examined at the places specified in Item IV below. The ISE has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its rules to provide for the listing and trading on the Exchange of cash-settled, European-style, index options on full and reduced values of the ISE 250 Index, the ISE 100 Index and the ISE 50 Index (collectively. the “ISE Indexes”).
Specifically, the Exchange proposes to list options based upon the full value of the ISE Indexes (“Full-size ISE Indexes”) as well as one-tenth of the value of the ISE Indexes (“Mini ISE Indexes”).
The ISE Indexes are designed to track the performance of the most highly capitalized publicly traded companies in the United States. Each index is a float-adjusted capitalization-weighted index,
Companies are selected for inclusion in the ISE Indexes by the Exchange based on the Exchange's methodology.
The ISE indexes are calculated and maintained by Standard & Poor's (“S&P”) pursuant to the Exchange's rules-based methodology and instructions.
The ISE 250 Index is designed to track the combined performance of the most highly capitalized stocks in the U.S. equity markets and specifically includes the top 250 stocks as ranked by market capitalization.
Components of the ISE 250 Index are selected using a rules-based methodology that is fully transparent. Its original selection pool includes all common stocks listed on the NYSE, Amex and NASDAQ. The entire index universe is ranked in descending order by unadjusted market capitalization. Companies that do not meet component eligibility requirements are removed. If a component has multiple share classes, the most liquid issue for that company is included. The top 250 companies, ranked by market capitalization, are then selected from the remaining universe.
Each component's eligibility and ranking is reviewed twice annually, in June and December of each calendar year. Any necessary component changes are made after the close on the third Friday of June and December, and become effective at the opening on the next trading day. Changes to the ISE 250
In addition to the scheduled reviews, the ISE 250 Index is reviewed on an ongoing basis to accommodate extraordinary events and corporate actions, such as delisting, bankruptcies, mergers or acquisitions involving index components.
As set forth in Exhibit 3 to the proposal, as of June 11, 2004, following are the characteristics of the ISE 250 Index: (i) The total capitalization of all of the components in the Index is $8.63 trillion; (ii) regarding component capitalization, (a) the highest capitalization of a component is $328.14 billion (General Electric Co.), (b) the lowest capitalization of a component is $5.47 billion (The Estee Lauder Co., Class A), (c) the mean capitalization of the components is $34.51 billion, and (d) the median capitalization of the components is $16.85 billion; (iii) regarding component price per share, (a) the highest price per share of a component is $113.71 (Wellpoint Health Networks, Inc.), (b) the lowest price per share of a component is $3.40 (Lucent Technologies, Inc.), (c) the mean price per share of the components is $45.73, and (d) the median price per share of the components is $42.67; (iv) regarding component weightings, (a) the highest weighting of a component is 3.8% (General Electric Co.), (b) the lowest weighting of a component is 0.1% (Estee Lauder Co., Class A), (c) the mean weighting of the component is 0.4%, (d) the median weighting of the components is 0.2%, and (e) the total weighting of the top five highest weighted components is 15.9% (General Electric Co., Exxon Mobil Corp., Pfizer, Inc., Citigroup, Inc., Microsoft Corp.); (v) regarding component available shares, (a) the most available shares of a component is 10.77 billion shares (Microsoft Corp.), (b) the least available shares of a component is 118.91 million shares (M&T Bank Corp.), (c) the mean available shares of the components is 1.01 billion shares, and (d) the median available shares of the components is 455.63 million shares; (vi) regarding the six month average daily volumes of the components, (a) the highest six month average daily volume of a component is 64.6 million shares (Lucent Technologies, Inc.), (b) the lowest six month average daily volume of a component is 514,230 shares (William Wrigley Jr., Co.), (c) the mean six month average daily volume of the components is 5.292 million shares, (d) the median six month average daily volume of the components is 2.81 million shares, (e) the average of six month average daily volumes of the five most heavily traded components is 57.56 million shares (Lucent Technologies, Inc., Microsoft Corp., Intel Corp., Cicso Systems, Inc. & Sun Microsystems, Inc.), and (f) 100% of the components had a six month average daily volume of at least 50,000; and (vii) regarding option eligibility, (a) 99.2% of the components are options eligible, as measured by weighting, and (b) 97.2% of the components are options eligible, as measured by number.
The ISE 100 Index tracks the 100 most actively traded listed options classes on the Exchange. Components of the ISE 100 Index are selected based on the average daily volume of each options class over a six-month period on the Exchange. Its original selection pool includes all equity options listed on the Exchange, ranked by average daily volume over the previous six month period. Companies that do not meet component eligibility requirements are removed. The top 100 companies, ranked by average daily volume, are then selected, and the index is weighted by float-adjusted market capitalization.
Similar to the ISE 250 Index, each component's eligibility and ranking in the ISE 100 Index is reviewed twice annually, in June and December of each calendar year. Any necessary component changes are made after the close on the third Friday of June and December, and become effective at the opening on the next trading day. Changes to the ISE 100 Index will be announced on ISE's publicly available website five trading days prior to the effective date.
In addition to the scheduled reviews, the ISE 100 Index is reviewed on an ongoing basis to accommodate extraordinary events and corporate actions, such as delistings, bankruptcies, mergers or acquisitions involving index components.
As set forth in Exhibit 3 to the proposal, as of June 11, 2004, following are the characteristics of the ISE 100 Index: (i) The total capitalization of all of the components in the Index is $5.36 trillion; (ii) regarding component capitalization, (a) the highest capitalization of a component is 328.14 billion (General Electric Co.), (b) the lowest capitalization of a component is $104.44 million (Genta, Inc.), (c) the mean capitalization of the components is $53.65 billion, and (d) the median capitalization of the components is $26.09 billion; (iii) regarding component price per share, (a) the highest price per share of a component is $93.01 (Goldman, Sachs Group, Inc.), (b) the lowest price per share of component is $2.27 (Genta, Inc.), (c) the mean price per share of the components is $36.94, and (d) the median price per share of the components is $31.59; (iv) regarding component weightings, (a) the highest weighting of a component is 6.1% (General Electric Co), (b) the lowest weighting of a component is 0.002% (Genta, Inc.), (c) the mean weighting of the components is 1.0%, (d) the median weighting of the components is 0.5%, and (e) the total weighting of the top five highest weighted components is 25.6% (General Electric Co., Exxon Mobil Corp., Pfizer, Inc., Citigroup, Inc., Microsoft Corp.); (v) regarding component available shares, (a) the most available shares of a component is 10.77 billion shares (Microsoft Corp.), (b) the least available shares of a component is 39.05 million shares (Osi Pharmaceuticals, Inc.), (c) the mean available shares of the components is 1.67 billion shares, and (d) the median available shares of the components is 924.04 million shares; (vi) regarding the six month average daily volumes of the components, (a) the highest six month average daily volume of a component is 64.6 million shares (Lucent Technologies, Inc.), (b) the lowest six month average daily volume of a component is 981,490 shares (Reynolds American, Inc.), (c) the mean six month average daily volume of the components is 11.58 million shares, (d) the median six month average daily volume of the components is 6.84 million shares, (e) the average of six month average daily volumes of the five most heavily traded components is 60.08 million shares (Lucent Technologies, Inc., Microsoft Corp., Intel Corp., Sirius Satellite Radio, Inc. & Cisco Systems, Inc.), and (f) 100% of the components had a six month average daily volume of at least 50,000; (vii) regarding option eligibility, (a) 100% of the components are options eligible, as measured by weighting, and (b) 100% of the components are options eligible, as measured by number.
The ISE 50 Index is a subset of the ISE 250 Index, such that the components of the ISE 50 Index consist of the top 50 components that make up the ISE 250 Index, as ranked by market capitalization. Thus, the criteria for inclusion into the ISE 50 Index, as well as the maintenance of the Index, are identical to those of the ISE 250 Index.
As set forth in Exhibit 3 to the proposed as of June 11, 2004, following are the characteristics of the ISE 50 Index: (i) The total capitalization of all of the components in the Index is $5.18 trillion; (ii) regarding component capitalization, (a) the highest
The base index level of the ISE 250 Index, the ISE 100 Index, and the ISE 50 Index, as of December 31, 1998, was 250, 100 and 200, respectively. On January 3, 2005, the index level of the ISE 250 Index, the ISE 100 Index and the ISE 50 Index was 227.48, 86.32, and 156.98, respectively. the Exchange proposes to base trading in options on both full-size ISE Indexes and on fractions of Full-size ISE Indexes. In particular, the Exchange proposes to list options on Mini ISE Indexes that are based on one tenth of the value of full-size ISE Indexes. The Exchange believes that listing options on reduced values will attract a greater source of customer business than if options were based only on the full value of the ISE Indexes. The Exchange further believes that listing options on reduced values will provide an opportunity for investors to hedge, or speculate on, the market risk associated with the stocks comprising the ISE Indexes. Additionally, by reducing the values of the ISE Indexes, investors will be able to use this trading vehicle while extending a smaller outlay of capital. The Exchange believes that this should attract additional investors, and, in turn, create a more active and liquid trading environment.
The Full-size ISE Indexes' and the Mini ISE Indexes' level shall each be calculated continuously, using the last sale price for each component stock in the ISE Indexes, and shall be disseminated every 15 seconds throughout the trading day.
The settlement values for purposes of settling both Full-size ISE Indexes (“Full-size Settlement Value”) and Mini ISE Indexes (“Mini Settlement Value”) shall be calculated on the basis of opening market prices on the business day prior to the expiration date of such options (“Settlement Day”).
S&P will monitor and maintain the ISE Indexes pursuant to ISE's methodology and instructions. S&P is responsible for making all necessary adjustments to the ISE Indexes to reflect component deletions, share changes, stock splits, stock dividends (other than an ordinary cash dividend), and stock price adjustments due to restructuring, mergers, or spin-offs involving the underlying components. Some corporate actions, such as stock splits and stock dividends, require simple changes to the available shares outstanding and the stock prices of the underlying components. The number of common shares outstanding for each component stock will be reviewed every Friday. Share changes of less than 5% will be updated on a quarterly basis, becoming effective after the close on the third Friday of March, June, September and December of each calendar year. The index divisor is adjusted at that time to compensate for the share changes. Share changes greater than 5% will be adjusted after the close on the Wednesday of the following week. The index divisor change also becomes effective after the close on that day. Changes will be announced on the Exchange's publicly available website prior to the effective date. Unscheduled share changes due to corporate actions
The eligibility of each component of the ISE Indexes will be reviewed in June and December of each calendar year. Components that fail to meet the eligibility requirements are replaced with new component companies. Component changes may also occur between review periods if a specific corporate action makes an existing component ineligible. The Exchange maintains a Component Replacement Pool (“CRP”) for the ISE Indexes at all times for contingency purposes. The CRP contains at least ten companies that meet the eligibility requirements for the ISE Indexes, ranked by market capitalization for the ISE 250 Index and the ISE 50 Index, and six-month average trading volume for the ISE 100 Index. Components removed from the ISE Indexes are replaced with those from the CRP. Component changes are made after the close on the third Friday of June and December of each calendar year, and become effective at the opening on the next trading day. All such changes will be announced on the Exchange's publicly available website at least five trading days prior to the effective date.
The Exchange represents that the ISE Indexes currently satisfy the maintenance criteria and further states that it will monitor and maintain the ISE Indexes on a quarterly basis, at which point the Exchange will notify the Market Regulation Division of the Commission if: (i) The number of securities in the ISE Indexes drops by
The contract specifications for options on the ISE Indexes are set forth in Exhibit 3 to the proposal. The ISE Indexes are each broad-based indexes, as defined in ISE Rule 2001(j).
For each of the Full-size ISE Indexes, the Exchange proposes to establish aggregate position and exercise limits at 50,000 contracts on the same side of the market, provided no more than 30,000 of such contracts are in the nearest expiration month series. For position and exercise limit purposes, Full-size ISE Indexes contracts shall be aggregated with Mini ISE Indexes contracts, where ten (10) Mini ISE Indexes contracts equal one (1) Full-size ISE Index contract.
The Exchange proposes to apply index margin requirements for the purchase and sale of options on the ISE Indexes. Accordingly, purchases of put or call options with 9 months or less until expiration must be paid for in full. Writers of uncovered put or call options must deposit/maintain 100% of the option proceeds, plus 15% of the aggregate contract value (current index level × $100), less any out-of-the-money amount, subject to a minimum of the option proceeds plus 10% of the aggregate contract value for call options and a minimum of the option proceeds plus 10% of the aggregate exercise price amount for put options.
The Exchange proposes to set strike price intervals at 2
The Exchange proposes to list options on the ISE Indexes in the three consecutive near-term expiration months plus up to three successive expiration months in the March cycle. For example, consecutive expirations of January, February, March, plus June, September, and December expirations would be listed.
The Exchange represents that it has an adequate surveillance program in place for options traded on the ISE Indexes, and intends to apply those same program procedures that it applies to the Exchange's other index options. Additionally, the Exchange is a member of the Intermarket Surveillance Group (“ISG”) under the Intermarket Surveillance Group Agreement, dated June 20, 1994. The members of the ISG include all of the U.S. registered stock and options markets; the Amex, the Boston Stock Exchange, Inc. (“BSE”), the Chicago Board Options Exchange (“CBOE”), the Chicago Stock Exchange, Inc. (“CSE”), the National Stock Exchange, Inc. (“NSE”), the NASD, the NYSE, the Pacific Stock Exchange, Inc. (“PSE”) and the Philadelphia Stock Exchange, Inc. (“PHLX”). The ISG members work together to coordinate surveillance and investigative
The Exchange represents that it has the system capacity to adequately handle all series that would be permitted to be added by this proposal (including LEAPS). The Exchange provided to the Commission information in a confidential submission that supports its system capacity representations that will result from the introduction of both Full-size ISE Index and Mini ISE Indexes.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The ISE believes that the proposed rule change does not impose any burden on competition.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from member or other interested parties.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change; or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. 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-ISE-2004-28. 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)
NASD is filing a proposed rule to require disclosure and consent when trading on a net basis with customers. Proposed new language is in
In its filing with the Commission, NASD included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in item IV below. NASD has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
A riskless principal transaction is a transaction in which a member, after having received a customer order executes an offsetting transaction, as principal, with another customer or broker-dealer to fill that customer order and both transactions are executed at the same price. NASD announced amendments to the trade reporting rules that required qualifying riskless principal transactions of market makers to be the subject of a single trade report.
In view of the purpose and importance of these amendments, NASD also addressed the treatment of net trading.
In view of the regulatory interest in fostering a single trade report for riskless principal transactions, NASD announced that a member “working an order” (that is, finding an offsetting execution or series of executions for a customer order that the member holds) for an institutional account or in connection with a block-size order, would be presumed to be handling the worked order on a qualifying riskless principal basis with the order matched off on each side at the same price (exclusive of any mark-up or mark-down, commission equivalent or other fee) unless the customer has specifically requested that the order be traded on a net basis, at a different price.
In response to this guidance provided by NASD and Nasdaq, members were concerned that the presumption to trade at the same price did not reflect the fact that institutional customers have historically expected firms to trade with them on a net basis. Members also were concerned that such a presumption would place them in the difficult position of having to rebut it on nearly every institutional trade. Members requested guidance on how to document this understanding, and asked for permission to use “negative consent” letters, citing logistical difficulties with obtaining affirmative consent from customers. In response, Nasdaq, after consultation with both the SEC and NASD regulatory staff, stated that members may use negative consent letters to evidence a customer's request to trade on a net basis, as long as the letter met specified conditions, including that the letter clearly disclosed the terms and conditions for handling the order and the customer was provided a meaningful opportunity to object to the letter.
Because it has been the NASD staff's understanding that net trading typically only occurs at the request of institutional customers, NASD has not addressed specifically in prior Notices to Members a member's obligations when trading on a net basis with respect to non-institutional customers. However, given that there is a presumption that a member cannot trade on a net basis with a customer unless the customer has specifically requested it, NASD staff has taken the position that members may only trade with non-institutional customers on a net basis after obtaining their informed consent on an order-by-order basis.
To clarify and codify the NASD staff's positions, both with respect to institutional and non-institutional customers, the proposed rule change would require a member to obtain consent from a customer prior to executing a transaction with a customer on a “net” basis. Members would be required to retain and preserve all documentation relating to the consent obtained pursuant to the proposed rule in accordance with Rule 3110(a).
With respect to non-institutional customers,
With respect to institutional customers, a member also must obtain consent, but it may be evidenced through the use of a negative consent letter. If using a negative consent letter, the member must clearly disclose to the institutional customer in the letter the terms and conditions for handling the customer order(s) and provide the institutional customer with a meaningful opportunity to object to the execution of transactions on a net basis in the letter. If no objection is received, then the member may reasonably conclude that the institutional customer has consented to the terms and conditions in the letter and requested that the member trade on a net basis and the member may rely on such letter for all of the customer's orders (unless instructed otherwise).
NASD believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act, which requires, among other things, that NASD's rules must be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general, to protect investors and the public interest. NASD believes that the proposed rule will promote investor protection by codifying the requirement that members provide disclosure and obtain customer consent when trading on a net basis.
NASD does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change, or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. 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-NASD-2004-135. This file number should be included on the subject line if e-mail is used. To help the Commission process and review comments more efficiently, please use only one method. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Section, 450 Fifth Street, NW., Washington, DC 20549. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File No. SR-NASD-2004-135 and should be submitted on or before April 27, 2005.
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 provide limited compensation for losses due to malfunctions of the order-execution systems of the Nasdaq Market Center or Nasdaq's Brut facility. Nasdaq has designated this proposal as non-controversial and has requested that the Commission waive the 30-day pre-operative waiting period contained in Rule 19b-4(f)(6)(iii) under the Act.
The text of the proposed rule change, as amended, is below. Proposed new language is
(a) through (h) No Change.
(i)
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, as amended. The text of these statements may be examined at the places specified in item IV below. Nasdaq has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq is proposing to provide a limited exception to its general limitation of liability rules to allow for payments of claims to users for order processing failures in the Nasdaq Market Center and Nasdaq's Brut system. Current limitation of liability rules provide that Nasdaq and Brut are not liable for any losses, damages, or claims arising out of the Nasdaq Market Center or the Brut system or their use
Under the proposal, Nasdaq would compensate users of either the Nasdaq Market Center or Brut for failures of the order-execution portion of either system to correctly process an order, Quote/Order, message, or other data (Order) transmitted by a market participant into it, provided receipt of the entry has been acknowledged by that system. Payments under the proposal shall be subject to the following limits:
(1) For one or more claims made by a single market participant related to the use of the Nasdaq Market Center or Brut system on a single trading day, compensation would be limited to the larger of $100,000, or the amount of any recovery obtained by Nasdaq under any applicable insurance policy;
(2) For the aggregate of all claims made by all market participants related to the use of the Nasdaq Market Center or Brut system on a single trading day, compensation will be limited to the larger of $250,000, or the amount of the recovery obtained by Nasdaq under any applicable insurance policy; and
(3) For the aggregate of all claims made by all market participants related to the use of the Nasdaq Market Center or Brut system during a single calendar month, compensation will be limited to the larger of $500,000, or the amount of the recovery obtained by Nasdaq under any applicable insurance policy.
If all of the claims arising out of the use of the Nasdaq Market Center or Brut system cannot be fully satisfied because together they exceed the maximum amount of compensation dollars available, then available monies will be allocated on a proportional basis among all such claims arising on a single trading day or during a single calendar month, as applicable. All claims for compensation must be made in writing and submitted to Nasdaq no later than the opening of trading on the next business day after the day on which the use of Nasdaq's facilities gave rise to the compensation claim.
Nasdaq states that it will apply the proposed rule in a non-discriminatory manner, and believes that the proposed rule change provides a uniform non-discriminatory method to compensate Nasdaq Market Center and Brut system users for losses arising from system malfunctions in the order execution process. Nasdaq believes that the potential availability of such compensation engenders confidence in Nasdaq market systems, and may encourage greater use of those systems thereby increasing beneficial liquidity for all system users. Finally, Nasdaq notes that another market center has a similar rule in place to likewise provide limited compensation for system malfunctions.
Nasdaq believes that the proposed rule change, as amended, is consistent with the provisions of section 15A of the Act,
Nasdaq does not believe that the proposed rule change, as amended, will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
The foregoing proposed rule change, as amended, is subject to section 19(b)(3)(A)(iii) of the Act
Nasdaq satisfied the five-day pre-filing requirement. In addition, Nasdaq has requested that the Commission waive the 30-day operative delay. Nasdaq believes that additional benefits and protections offered to users of Nasdaq and Brut, including public customers, impacted by system malfunctions should not be delayed. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because such waiver will permit users of the Nasdaq Market Center and Brut system to avail themselves of the benefits of these provisions immediately. In addition, the Commission notes that the proposed rule is substantially similar to a rule currently in place at another market center.
At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, 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,
All submissions should refer to File Number SR-NASD-2005-034. 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”),
NSCC is seeking to establish a comprehensive standard of care and limitation of liability with respect to its members.
In its filing with the Commission, NSCC 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. NSCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
NSCC is seeking to establish a comprehensive standard of care and limitation of liability with respect to its members. Historically, the Commission has left to user-governed clearing agencies the question of how to allocate losses associated with, among other things, clearing agency functions.
NSCC believes that adopting a uniform rule
SEC. 2. Notwithstanding any other provision in the Rules:
(a) The Corporation will not be liable for any action taken, or any delay or failure to take any action, hereunder or otherwise to fulfill the Corporation's obligations to its Members including Settling Members, Settling Bank Only Members, Municipal Comparison Only Members, Insurance Carrier Members, TPA Members, Mutual Fund/Insurance Services Members, Non-Clearing Members, Fund Members and Data Services Only Members, other than for losses caused directly by the Corporation's gross negligence, willful misconduct, or violation of Federal securities laws for which there is a private right of action. Under no circumstances will the Corporation be liable for the acts, delays, omissions, bankruptcy, or insolvency, of any third party, including, without limitation, any depository, custodian, sub-custodian, clearing or settlement system, transfer agent, registrar, data communication service or delivery service (“Third Party”), unless the Corporation was grossly negligent, engaged in willful misconduct, or in violation of Federal securities laws for which there is a private right of action in selecting such Third Party.
(b) Under no circumstances will the Corporation be liable for any indirect, consequential, incidental, special, punitive or exemplary loss or damage (including, but not limited to, loss of business, loss of profits, trading losses, loss of opportunity and loss of use) howsoever suffered or incurred, regardless of whether the Corporation has been advised of the possibility of such damages or whether such damages otherwise could have been foreseen or prevented.
(c) With respect to instructions given to the Corporation by a Special Representative/Index Recipient Agent, the Corporation shall have no responsibility or liability for any errors which may occur in the course of transmissions or recording of any transmissions or which may exist in any magnetic tape, document or other media so delivered to the Corporation.
(d) With respect to the Corporation's distribution facilities, the Corporation assumes no responsibility whatever for the form or content of any tickets, checks, papers, documents or other material (other than items prepared by it) placed in the boxes in its distribution facilities assigned to each Settling Member, Municipal Comparison Only Member, Insurance Carrier Member, TPA Member, Fund Member and Data Services Only Member, or otherwise handled by the Corporation; nor does the Corporation assume any responsibility for any improper or unauthorized removal from such boxes or from the Corporation's facilities of any such tickets, checks, papers, documents or other material, including items prepared by the Corporation.
(e) With respect to Fund/Serv transactions, the Corporation will not be responsible for the completeness or accuracy of any transaction or instruction received from or transmitted to a
(f) The Corporation will not be responsible for the completeness or accuracy of any IPS Data and Repository Data received from or transmitted to an Insurance Carrier Member, Member or Data Services Only Member through IPS nor for any errors, omissions or delays which may occur in the transmission of such IPS Data and Repository Data to or from an Insurance Carrier Member, or Data Services Only Member.
NSCC believes that the proposed rule change is consistent with the requirements of Section 17A of the Act
NSCC does not believe that the proposed rule change will impose a burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
NSCC has not solicited or received any written comments on this proposal. NSCC will notify the Commission of any written comments it receives.
Within thirty-five days of the date of publication of this notice in the
(A) By order approve such proposed rule change or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. 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-NSCC-2004-09. 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”)
Phlx proposes to amend its schedule of fees to adopt a fee schedule for Streaming Quote Traders (“SQTs”).
SQT fees and credits would apply as follows:
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 Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to adopt a fee schedule for SQTs in order to provide competitive fees for SQTs. The Exchange believes that the proposed SQT fee schedule creates an incentive for SQTs to remain on the Exchange's options floor, thereby providing the necessary liquidity for floor-brokered orders traded in-crowd. Currently, all Phlx listed equity options and index options trade on Phlx XL, and SQTs have had the opportunity to acclimate themselves to the electronic trading environment. Thus, the Exchange believes that it is now appropriate to assess the proposed SQT fees.
Each member organization will be assessed per month a SQT fee based on the total number of options in which all SQTs in the same member organization are assigned. A member organization will be assessed a SQT fee based on the aggregate amount of equity options and index options traded by the SQTs in that member organization. However, credits may be earned to offset the amount of the SQT fee assessed on the member organization. The amount of credit that can be earned by each member organization on a monthly basis is based on the number of permit holders, who are also SQTs, per member organization, subject to a maximum allowable permit credit applicable to each SQT category.
The proposed SQT fees and corresponding credits will be assessed on a monthly basis. The highest applicable SQT fee will be assessed based on the highest SQT category level in which the SQT was qualified at any time during a particular calendar month. For example, if a SQT is eligible to trade at any time in a given calendar month as a Category I SQT, and sometime during that same calendar month becomes qualified and eligible to trade as a Category II SQT, the SQT member organization will be assessed the fee applicable to a Category II SQT, regardless of when such SQT became eligible to trade at the Category II level, and regardless if, during that same calendar month, the SQT resumed eligibility as a Category I SQT.
SQTs are assigned to trade options by the Exchange's Options Allocation, Evaluation, and Securities Committee (“OAESC”).
All other applicable Exchange fees will continue to apply, such as transaction and comparison charges. The proposed SQT fees are scheduled to become effective for transactions settling on or after March 1, 2005.
The Exchange is also proposing to make minor technical changes to renumber certain footnotes. The purpose of renumbering the footnotes is to update the fee schedule to reflect certain footnotes that were recently added to the exchange's fee schedule.
The Exchange believes that its proposal to amend its schedule of fees is consistent with section 6 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, as amended, 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-2005-16. 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.
Notice of request for public comments.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. The purpose of this notice is to allow 60 days for public comment in the
The Department will accept comments from the public up to 60 days from April 6, 2005.
You may submit comments by any of the following methods:
E-mail:
Mail (paper, disk, or CD-ROM submissions): Susan Cowlishaw, US Department of State, CA/PPT/FO/FC, 2100 Pennsylvania Avenue, NW, 3rd Floor/Room 3040/SA-29, Washington DC 20037.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed information collection and supporting documents, to Susan Cowlishaw, U.S. Department of State, CA/PPT/FO/FC, 2100 Pennsylvania Avenue, NW., 3rd Floor/Room 3040/ SA-29, Washington DC 20037, who may be reached on 202-261-8957 or
We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper performance of our functions.
• Evaluate the accuracy of our estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of technology.
In accordance with section 202 (c) of the Foreign Relations Authorization Act, Fiscal Year 2003, which amended section 37 of the State Department Basic Authorities Act (22 U.S.C. 2709), notice is hereby given that pursuant to letters dated March 7, 2005, the State Department advised appropriate congressional committee members that the Secretary of the Department of Homeland Security and the Attorney General approved the Guidelines for the Exercise of Law Enforcement Authorities by Special Agents of the Diplomatic Security Service. This new subsection of 22 U.S.C. 2709 expands authority for special agents of the Department of State and the Foreign Service to obtain and execute subpoenas and arrest warrants and to make arrests without warrant subject to guidelines approved by the Secretary of State, the Secretary of Treasury (and now the Secretary of Homeland Security per the Homeland Security Act of 2002) and the Attorney General. The approved set of guidelines constitutes a statement of policy that will govern such activities by special agents of the Bureau of Diplomatic Security to the United States pursuant to 22 U.S.C. 2709.
Jenna M. Litschewski, Attorney Adviser, L/LM/DS, at 571-345-2955 or
Office of the United States Trade Representative.
Notice.
The Office of the United States Trade Representative (USTR) released a notice on February 25, 2005, to announce the product petitions that were accepted for further review in the 2004 GSP Annual Review, and set forth the schedule for comment and public hearing on these petitions, for requesting participation in the hearing, and for submitting pre-hearing and post-hearing briefs. This addendum is to inform the public of the addition of several self-initiated competitive need limitation (CNL) waiver requests and sets forth a schedule for public participation.
Contact the GSP Subcommittee of the Trade Policy Staff Committee, Office of the United States Trade Representative, 1724 F Street, NW., Room F-220, Washington, DC 20508. The telephone number is (202) 395-6971.
The GSP provides for the duty-free importation of designated articles when imported from designated beneficiary developing countries. The GSP is authorized by title V of the Trade Act of 1974 (19 U.S.C. 2461,
Section 503(c)(2)(A) of the 1974 Act states that the President must terminate GSP duty-free treatment for an article from a beneficiary developing country by July 1 of the next calendar year if the import value of that article exceeds a set amount ($115 million in 2004) or exceeds 50 percent of total U.S. imports of the article from all countries. The President has the authority to grant CNL waivers, as set forth in section 503(d) of the 1974 Act (19 U.S.C. 2463(d)).
Modifications to the list of articles eligible for duty-free treatment under the GSP and CNL waivers resulting from the 2004 Annual Review will be announced on or about June 30, 2005, in the
The GSP Subcommittee of the TPSC invites comments in support of or in opposition to any proposed CNL waiver which is included in this addition to the Annual Review (Annex II). Submissions should comply with 15 CFR part 2007, except as modified below. All submissions should identify the proposed CNL waiver(s) in terms of the HTS subheading number and country of origin as shown in Annex II. The GSP regulations (15 CFR part 2007) provide the schedule of dates for conducting an annual review unless otherwise specified in a
In order to facilitate prompt processing of submissions, USTR strongly urges and prefers electronic e-mail submissions in response to this notice. Hand-delivered submissions will not be accepted. These submissions should be single copy transmissions in English with the total submission not to exceed 50 single-spaced standard letter-size pages. E-mail submissions should use the following subject line: “Comments on 2004 CNL Review” followed by the HTS subheading number and the country of origin found in the Annex II and, as appropriate “Written Comments”, “Notice of Intent to Testify”, “Pre-hearing brief”, “Post-hearing brief” or “Comments on USITC Advice”. Documents must be submitted in English in one of the following formats: WordPerfect (.WPD), MSWord (.DOC) , or text (.TXT) files. Documents may not be submitted as electronic image files or contain imbedded images (for example, “.JPG”, “.TIF”, “.PDF”, “.BMP”, or “.GIF”). E-mail submissions containing such files will not be accepted. Supporting documentation submitted as spreadsheets are acceptable as Quattro Pro or Excel files, formatted for printing on 8
If the submission contains business confidential information, a non-confidential version of the submission must also be submitted that indicates where confidential information was redacted by inserting asterisks where material was deleted. In addition, the confidential submission must be clearly marked “BUSINESS CONFIDENTIAL” at the top and bottom of each page of the document. The non-confidential version must also be clearly marked at the top and bottom of each page (either “PUBLIC VERSION” or “NON-CONFIDENTIAL”). Documents that are submitted without any marking might not be accepted or will be considered public documents.
For any document containing business confidential information submitted as an electronic attached file to an e-mail transmission, the file name of the business confidential version should begin with the characters “BC-”, and the file name of the public version should begin with the characters “P-”. The “P-” or “BC-” should be followed by the name of the party (government, company, union, association, etc.) which is making the submission.
E-mail submissions should not include separate cover letters or messages in the message area of the e-mail; information that might appear in any cover letter should be included directly in the attached file containing the submission itself, including the sender's e-mail address and other identifying information. The e-mail address for these submissions is
Public versions of all documents relating to this review will be available for review shortly after the due date, by appointment in the USTR public reading room, 1724 F Street, NW., Washington, DC. Appointments may be made from 9:30 a.m. to noon and 1 p.m. to 4 p.m., Monday through Friday, by calling (202) 395-6186.
Hearings will be held by the GSP Subcommittee of the TPSC on May 2, 2005, beginning at 10 a.m. at the White House Conference Center, Truman Room, 726 Jackson Place, NW., Washington, DC. The hearings will be open to the public and a transcript of the hearings will be made available for public inspection or can be purchased
All interested parties wishing to make an oral presentation at the hearings must submit, following the above “Requirements for Submissions”, the name, address, telephone number, and facsimile number and e-mail address, if available, of the witness(es) representing their organization to the Chairman of the GSP Subcommittee by 5 p.m., April 28, 2005. Requests to present oral testimony in connection with the public hearings must be accompanied by a written brief or statement, in English, and also must be received by 5 p.m., April 28, 2005. Oral testimony before the GSP Subcommittee will be limited to five-minute presentations that summarize or supplement information contained in briefs or statements submitted for the record. Post-hearing briefs or statements will be accepted if they conform with the regulations cited above and are submitted, in English, by 5 p.m., May 27, 2005. Parties not wishing to appear at the public hearings may submit post-hearing written briefs or statements, in English, by 5 p.m., May 27, 2005.
In accordance with sections 503(a)(1)(A) and 503(e) of the 1974 Act and the authority delegated by the President, pursuant to section 332(g) of the Tariff Act of 1930, the U.S. Trade Representative has requested that the USITC provide its advice on the probable economic effect of the proposed CNL waivers. Comments by interested persons on the USITC Report prepared as part of the product review should be submitted by 5 p.m., 5 days after the date of USITC publication of its report.
The following Agreements were filed with the Department of Transportation under the provisions of 49 U.S.C. 412 and 414. Answers may be filed within 21 days after the filing of the application.
The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits were filed under subpart B (formerly subpart Q) of the Department of Transportation's Procedural Regulations (
Office of the Secretary of Transportation (OST), DOT.
Notice of public meeting.
On January 26, 2005, the Department of Transportation (DOT) published a notice of regulatory review explaining its intent to conduct a review of its existing regulations and its current Regulatory Agenda. As part of this review, the Department announced that it would hold a public meeting to discuss and consider the public's comments. We are now publishing the agenda for that meeting.
The public meeting will be on April 12, 2005, in Washington, DC, beginning at 9:30 a.m. The comment period for this regulatory review closes on April 29, 2005.
The public meeting will be held at the Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590, in room 2230.
Karen Starring, Attorney Advisor, Office of General Counsel, Department of Transportation, 400 7th St., SW., Room 10424, Washington, DC 20590-0001. Telephone (202) 366-4723. E-mail
We published a notice of regulatory review on January 26, 2005 (70 FR 3761) that invited public comment on how we could (1) improve our rules to be more effective and less costly or burdensome, (2) identify rules no longer needed and/or new rules that may be needed, and (3) help prioritize our current rulemaking activities, which are set forth in our semi-annual Regulatory Agenda (69 FR 73492, Dec. 13, 2004). We also announced that we would hold a public meeting in Washington, DC, on April 12 and 19, 2005, to further facilitate this process. Based on the requests for participation, we have determined that all participants can be accommodated in one day. Therefore, we will hold the public meeting on April 12, 2005.
1. The meeting will be open to all persons who have requested in advance to participate. Seats for other attendees will be available on a first-come, first-serve basis. Please note that seats may become available throughout the public meeting as attendees come and go.
2. This public meeting is being held at the Department of Transportation Headquarters and, therefore, all participants and attendees are subject to federal security screening. All participants and attendees must enter through the Southwest entrance (corner of Seventh and E Street) and bring photo identification. Participants or attendees who have Federal government identification will still need to check in, but will not be required to sign-in. To facilitate security screening, all participants and attendees are encouraged to limit the bags and other items that they bring into the building. Anyone exiting the building for any reason will be required to re-enter through the security checkpoint at the Southwest entrance.
3. The Department's General Counsel will preside over the public meeting. Senior officials of the Department's operating administrations also will attend this meeting.
4. Participants must limit their presentations and submissions of data to the issues discussed in their comments submitted in preparation for the public meeting.
5. We currently plan to make a record of the meeting available in the Department's Internet accessible public docket as soon as possible following the public meeting.
6. We will review and consider all information presented at the public meeting. Position papers or materials presenting views or information related to the issues discussed at the public meeting may be accepted at the discretion of the presiding officer. Please provide 5 copies of all material that you present at the public meeting so we will have copies for all panel members. You may provide additional
7. The meeting is designed to solicit public views and gather additional information for our regulatory review. Therefore, the meeting will be conducted in an informal and non-adversarial manner. No individual will be subject to cross-examination by any other participant; however, DOT representatives may ask questions. In developing prepared remarks, participants should leave time for questions and discussion by the panel during their remarks.
8. We will consider all comments made at the public meeting and those written comments submitted to the docket before publishing a report providing at least a brief response to the comments we have received, including a description of any further action we intend to take.
9. We have tried to accurately allocate time to the participants based on the issues raised in their initial comments and requests for participation. However, we intend to keep the public meeting flowing so participants and others interested in a specific agenda item should arrive early.
The Department appreciates the efforts and the information provided by all of the participants in this process. We continue to welcome and encourage comments until April 29, 2005, and those comments will be taken into consideration in our final report.
5 U.S.C. 610; E.O. 12866, 58 FR 51735, Oct. 4, 1993.
Federal Aviation Administration (FAA), DOT.
Notice of disposition of prior petition.
Pursuant to FAA's rulemaking provisions governing the application, processing, and disposition of petitions for exemption, part 11 of Title 14, Code of Federal Regulations (14 CFR), this notice contains the disposition of certain petitions previously received. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Kenna Sinclair (425-227-1556), Transport Airplane Directorate (ANM-113), Federal Aviation Administration, 1601 Lind Ave SW., Renton, WA 98055-4056; or John Linsenmeyer (202-267-5174), Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85 and 11.91.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemption from the vision standard; request for comments.
This notice publishes the FMCSA's receipt of applications from 30 individuals for an exemption from the vision requirement in the Federal Motor Carrier Safety Regulations. If granted, the exemptions will enable these individuals to qualify as drivers of commercial motor vehicles (CMVs) in interstate commerce without meeting the vision standard prescribed in 49 CFR 391.41(b)(10).
Comments must be received on or before May 6, 2005.
You may submit comments identified by any of the following methods. Please identify your comments by the DOT DMS Docket Number FMCSA-2005-20560.
• Web Site:
• Fax: 1-202-493-2251.
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• Federal eRulemaking Portal: Go to
Ms. Maggi Gunnels, Office of Bus and Truck Standards and Operations, (202) 366-4001, FMCSA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 8 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays.
Under 49 U.S.C. 31315 and 31136(e), the FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The statute also allows the agency to renew exemptions at the end of the 2-year period. The 30 individuals listed in this notice have recently requested an exemption from the vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce. Accordingly, the agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by the statute.
Mr. Barron, age 36, has amblyopia in his right eye. His best-corrected visual acuity in the right eye is 20/100 and in the left, 20/20. Following an examination in 2004, his optometrist certified, “Based on this examination, it is my medical opinion that Mr. Barron has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Barron submitted that he has driven straight trucks for 1 year, accumulating 40,000 miles, and tractor-trailer combinations for 16 years, accumulating 1.2 million miles. He holds a Class A commercial driver's license (CDL) from Pennsylvania. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Brown, 47, has amblyopia in his left eye. The best-corrected visual acuity in his right eye is 20/20 and in the left, 20/200. His optometrist examined him in 2004 and stated, “I would like to certify that in my medical opinion Mr. Eddie Brown has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Brown submitted that he has driven straight trucks for 20 years, accumulating 1.0 million miles, and tractor-trailer combinations for 19 years, accumulating 345,000 miles. He holds a Class AM CDL from South Carolina. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Cook, 38, has central field loss in his right eye due to an injury in 1987. His best-corrected visual acuity in the
Mr. Cotner, 42, has amblyopia in his left eye. His best-corrected visual acuity in the right eye is 20/20 and in the left, 20/60. Following an examination in 2004, his optometrist certified, “It is my medical opinion that Mr. Cotner does have sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Cotner reported that he has driven tractor-trailer combinations for 13 years, accumulating 230,000 miles. He holds a Class A CDL from Oregon. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Fank, 43, had a retinal detachment in his right eye 15 years ago. The best-corrected visual acuity in his right eye is 20/150 and in the left, 20/20. His optometrist examined him in 2004 and stated, “This patient appears to have sufficient sight and peripheral vision to continue driving his commercial vehicle as safely as demonstrated over previous years.” Mr. Fank reported that he has driven straight trucks for 11 years, accumulating 247,000 miles, and tractor-trailer combinations for 10 years, accumulating 195,000 miles. He holds a Class A CDL from Illinois. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Fletcher, 38, has amblyopia in his left eye. The best-corrected visual acuity in his right eye is 20/20 and in the left, 20/200. His optometrist examined him in 2004 and noted, “In my professional opinion this patient should have sufficient vision with corrective lenses to operate a commercial vehicle.” Mr. Fletcher reported that he has driven tractor-trailer combinations for 10 years, accumulating 600,000 miles. He holds a Class A CDL from Texas. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Ford, 58, has had a macular scar in his right eye since age 8. His best-corrected visual acuity in the right eye is 20/200 and in the left, 20/20. Following an examination in 2005, his ophthalmologist noted, “It is my medical opinion this patient has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Ford reported that he has driven straight trucks for 34 years, accumulating 2.8 million miles. He holds a Class D driver's license from Tennessee. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Garcia, 52, had a retinal detachment in his right eye in 1995. The visual acuity in his right eye is light perception and in the left, 20/20. Following an examination in 2004 his optometrist stated, “It is my opinion, Larry Garcia has sufficient vision and visual field to perform driving tasks required for operating a commercial vehicle.” Mr. Garcia reported that he has driven straight trucks for 25 years, accumulating 1.2 million miles, and tractor-trailer combinations for 10 years, accumulating 780,000 miles. He holds a Class C driver's license from Oregon. His driving record for the last 3 years shows no crashes and one conviction for a moving violation—speeding—in a CMV. He exceeded the speed limit by 17 mph.
Mr. Hendrick, 63, has corneal damage in his right eye due to an injury in 1964. His best-corrected visual acuity in the right eye is 20/400 and in the left, 20/20. Following an examination in 2004, his optometrist noted, “I certify that Mr. Hendrick has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Hendrick submitted that he has driven straight trucks for 45 years, and tractor-trailer combinations for 30 years, accumulating 900,000 miles in each. He holds a Class A CDL from Illinois. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Higdon, 34, has amblyopia in his left eye. The best-corrected visual acuity in his right eye is 20/20 and in the left, 20/50. Following an examination in 2004, his optometrist certified, “It is my professional opinion that Mr. Higdon has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Higdon reported that he has driven straight trucks for 14 years, accumulating 250,000 miles. He holds a driver's license from Mississippi. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Hillman, 61, experienced a retinal detachment in his right eye in November 2001. His best-corrected visual acuity in the right eye is 20/200 and in the left, 20/20. Following an examination in 2004, his optometrist certified, “In my opinion Mr. Hillman retains sufficient vision to perform as a commercial driver.” Mr. Hillman reported that he has driven straight trucks for 7 years, accumulating 602,000 miles, and tractor-trailer combinations for 26 years, accumulating 2.3 million miles. He holds a Class A CDL from Washington. His driving record for the last 3 years shows one crash and no convictions for moving violations in a CMV. According to the police report, Mr. Hillman's vehicle collided with an oncoming vehicle, and the investigating officer was unable to determine which vehicle was over the double center line. Neither driver was cited.
Mr. Johnson, 55, had cataract surgery followed by infection and loss of his left eye in the year 2000. His best-corrected visual acuity in the right eye is 20/20. Following an examination in 2004, his optometrist noted, “In my opinion he has adequate vision to drive and is safe to drive a commercial vehicle with proper side mirrors.” Mr. Johnson reported that he has driven tractor-trailer combinations for 25 years, accumulating 2.7 million miles. He holds a Class DA CDL from Kentucky. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Kitzan, 47, has amblyopia in his right eye. The best-corrected visual acuity in his right eye is 20/200 and in the left, 20/15. His optometrist examined him in 2004 and certified, “Because of his past history of successfully operating trucks and equipment, and because his vision has been stable for approximately 35 years, it is my opinion Mr. Kitzan is visually capable of operating a commercial vehicle.” Mr. Kitzan reported that he has driven straight trucks and tractor-trailer combinations for 15 years, accumulating 750,000 miles in each. He holds a Class AM CDL from North Dakota. His driving record for the last 3 years shows no crashes and one conviction for a moving violation—speeding—in a CMV. He exceeded the speed limit by 12 mph.
Mr. Lassiter, 62, lost his right eye due to an injury 37 years ago. The best-corrected visual acuity in his left eye is 20/20. Following an examination in 2004, his optometrist noted, “I certify in my opinion, Mr. Lassiter has sufficient vision in his left eye to operate a commercial vehicle.” Mr. Lassiter submitted that he has driven straight trucks for 39 years, accumulating 1.1 million miles, and tractor-trailer combinations for 12 years, accumulating 600,000 miles. He holds a Class A CDL from Georgia. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Lesher, 30, has amblyopia in his left eye. His best-corrected visual acuity in the right eye is 20/20 and in the left, 20/50. Following an examination in 2004, his optometrist certified, “Based on his display of 20/20 binocular vision, his good depth perception, the presence of a full visual field, and his previous driving history with the longstanding nature of his visual condition, it is my opinion that Mr. Lesher has sufficient vision to perform the driving tasks associated with operating a commercial vehicle.” Mr. Lesher reported that he has driven tractor-trailer combinations for 8 years, accumulating 936,000 miles. He holds a Class A CDL from West Virginia. His driving record for the last 3 years shows no crashes and one conviction for a moving violation—speeding—in a CMV. He exceeded the speed limit by 13 mph.
Mr. Maggio, 62, lost his right eye due to an injury in 2001. The best-corrected visual acuity in his left eye is 20/20. His optometrist examined him in 2004 and noted, “In my medical opinion, Mr. Maggio has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Maggio reported that he has driven straight trucks for 2 years, accumulating 2,000 miles, and tractor trailer-combinations for 38 years, accumulating 4.1 million miles. He holds a Class A CDL from Missouri. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Miles, 40, lost his left eye due to trauma 15 years ago. His visual acuity in the right eye is 20/20. Following an examination in 2004, his optometrist certified, “In my opinion, Mr. Miles has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Miles submitted that he has driven straight trucks for 18 years, accumulating 250,000 miles, and tractor-trailer combinations for 9 years, accumulating 630,000 miles. He holds a Class AM CDL from Nevada. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Morelock, 54, has no vision in the right eye due to trauma from childhood. His visual acuity in the left eye is 20/20. Following an examination in 2005, his optometrist certified, “It is my professional opinion that the defect in Mr. Morelock's right eye will not affect the safe operation of a motor vehicle, whether private or commercial.” Mr. Morelock submitted that he has driven straight trucks for 14 years, accumulating 100,000 miles. He holds a Class D driver's license from Wisconsin. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Nau, 47, has had a macular scar in his left eye since birth. His best-corrected visual acuity in the right eye is 20/20 and in the left, 20/400. Following an examination in 2004, his ophthalmologist noted, “Mr. Nau has maintained a safe driving record for many years and has always driven with mild visual disability of the left eye. Since it has always been present, he has functioned well, and his peripheral visual acuity is excellent, there is no reason to believe that he cannot continue to operate commercial vehicles.” Mr. Nau submitted that he has driven straight trucks for 25 years, accumulating 2.0 million miles. He holds a Class AM CDL from Maryland. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Peebles, 52, has amblyopia in his left eye. The best-corrected visual acuity in his right eye is 20/20 and in the left, 20/200. His optometrist examined him in 2005 and certified, “To the best of my opinion, I would think that visually he can continue to drive commercial vehicles with little or no problems.” Mr. Peebles submitted that he has driven straight trucks for 3 years, accumulating 180,000 miles, and tractor-trailer combinations for 21 years, accumulating 2.6 million miles. He holds a Class A CDL from Indiana. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Peterson, 26, has amblyopia in his right eye. The visual acuity in his right eye is 20/200 and in the left, 20/20. His optometrist examined him in 2004 and certified, “His vision is more than adequate to perform the tasks required of him while driving and should remain stable over the next several years.” Mr. Peterson submitted that he has driven tractor-trailer combinations for 6 years, accumulating 600,000 miles. He holds a Class A CDL from Utah. His driving record for the last 3 years shows no crashes and one conviction for a moving violation—speeding—in a CMV. He exceeded the speed limit by 9 mph.
Mr. Robbins, 50, has had a retinal scar in his right eye since 1998. The best-corrected visual acuity in his right eye is 20/70 and in the left, 20/20. His ophthalmologist examined him in 2004 and noted, “His vision is sufficient to drive a commercial vehicle.” Mr. Robbins reported that he has driven tractor-trailer combinations for 27 years, accumulating 1.3 million miles. He holds a Class A CDL from New York. His driving record for the last 3 years shows one crash and one conviction for a moving violation in a CMV. According to the police report, Mr. Robbins' vehicle collided with another vehicle traveling in the same direction, but the investigating officer did not determine how the crash happened. The other driver was cited; Mr. Robbins was not cited.
Mr. Sanchez-Sanchez, 37, lost his left eye due to an injury 25 years ago. The visual acuity in his right eye is 20/25.
Mr. Stamey, 43, has a macular scar in the left eye due to injury in 2001. His best-corrected visual acuity in the right eye is 20/20 and in the left, 20/50. Following an examination in 2004, his ophthalmologist certified, “It is my opinion that you have very stable vision in the eye and indeed the left eye continues to improve. I see no reservation with your having a commercial driver's license. You should be able to perform with the restrictions you have with this left eye, in keeping with the slightly reduced vision.” Mr. Stamey reported that he has driven tractor-trailer combinations for 10 years, accumulating 960,000 miles. He holds a Class A CDL from North Carolina. His driving record for the last 3 years shows one crash and no convictions for moving violations in a CMV. According to the police report, Mr. Stamey was stopped in traffic when his vehicle was struck on the side by another driver who was trying to avoid rear-ending a vehicle in front of him. Neither Mr. Stamey nor the driver of the vehicle which struck his was cited.
Mr. Teich, 40, has had astigmatism in his left eye since childhood. His best-corrected visual acuity in the right eye is 20/20 and in the left, 20/60. Following an examination in 2004, his optometrist certified, “In my opinion, Mr. Teich possesses sufficient vision to safely operate a commercial vehicle and perform the driving tasks that are required.” Mr. Teich reported that he has driven tractor-trailer combinations for 10 years, accumulating 900,000 miles. He holds a Class A CDL from Minnesota. His driving record for the last 3 years shows no crashes and one conviction for a moving violation—speeding—in a CMV. He exceeded the speed limit by 5 mph.
Mr. Turner, 60, has a central vision deficit in his right eye due to trauma 15 years ago. His best-corrected visual acuity in the right eye is finger counting and in the left, 20/20. Following an examination in 2004, his optometrist certified, “In my medical opinion, Mr. Turner appears to have sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Turner reported that he has driven tractor-trailer combinations for 3 years, accumulating 348,000 miles. He holds a Class A CDL from Texas. His driving record for the last 3 years shows no crashes and two convictions for moving violations in a CMV. The moving violations were “failure to obey traffic control device” and exceeding the speed limit by 15 mph.
Mr. Watkins, 41, underwent a congenital cataract operation in his left eye in 1964. The visual acuity in his right eye is 20/20 and in the left, finger counting. His ophthalmologist examined him in 2004 and stated, “It is my medical opinion that Mr. Watkins has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Watkins reported that he has driven straight trucks and tractor-trailer combinations for 5 years, accumulating 625,000 miles in each. He holds a Class A CDL from Florida. His driving record for the last 3 years shows no crashes and one conviction for a moving violation—speeding—in a CMV. He exceeded the speed limit by 11 mph.
Mr. Wheeler, 51, had a corneal transplant in his right eye prior to 1996. The best-corrected visual acuity in his right eye is 20/50 and in the left, 20/20. Following an examination in 2004, his optometrist certified, “I feel in my medical opinion that Mr. Dean Wheeler has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Wheeler reported that he has driven straight trucks for 5 years, accumulating 60,000 miles. He holds a Class ABCD CDL from Wisconsin. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Williams, 36, lost the vision in his left eye due to an injury in 1992. His visual acuity in the right eye is 20/20. Following an examination in 2004, his optometrist noted, “In summary, the eye health is normal and vision is clear and normal. There appears to be no concern or limit to his visual ability to drive in general or to drive commercially.” Mr. Williams reported that he has driven straight trucks for 7 years, accumulating 350,000 miles, and tractor-trailer combinations for 9 years, accumulating 720,000 miles. He holds a Class A CDL from Texas. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Workman, 55, has amblyopia in his right eye. His best-corrected visual acuity in his right eye is 20/70 and in the left, 20/30. His ophthalmologist examined him in 2004 and noted, “In my opinion, he has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Workman submitted that he has driven straight trucks for 30 years, accumulating 1.5 million miles, and tractor-trailer combinations for 15 years, accumulating 75,000 miles. He holds a Class A CDL from Arkansas. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
In accordance with 49 U.S.C. 31315 and 31136(e), the FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated earlier in the notice.
Pipeline and Hazardous Safety Administration, DOT.
Notice.
In accordance with the requirements of 49 U.S.C. 5117(c), PHMSA is publishing the following list of exemption applications that have been in process for 180 days or more. The reason(s) for delay and the expected completion date for action on each application is provided in association with each identified application.
Delmer Billings, Office of Hazardous
1. Awaiting additional information from applicant.
2. Extensive public comment under review.
3. Application is technically complex and is of significant impact or precedent-setting and requires extensive analysis.
4. Staff review delayed by other priority issues or volume of exemption applications.
N—New application.
M—Modification request.
X—Renewal.
PM—Party to application with modification request.
Office of Pipeline Safety (OPS), Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice; issuance of advisory bulletin.
This advisory notice alerts pipeline operators of all hazardous liquid pipeline facility systems about the need to validate the accuracy of breakout tank strapping tables. Under certain circumstances, strapping table errors can potentially lead to dangerous conditions.
Joy Kadnar by phone at (202) 366-0568, by fax at (202) 366-4566, or by e-mail,
A breakout tank exploded and subsequently ignited in Glenpool, Oklahoma on April 7, 2003. The accident involved an 80,000-barrel breakout tank that exploded and burned as it was being filled with diesel. The resulting fire burned for over 20 hours and damaged two other nearby breakout tanks. While there were no injuries or fatalities, the cost of the accident exceeded two million dollars, residents adjacent to the accident site were evacuated, and area schools were closed for two days.
The National Transportation Safety Board (NTSB) conducted an investigation into the accident and subsequently published a Pipeline Accident Report titled “Storage Tank Explosion and Fire in Glenpool, Oklahoma.” In its findings adopted on October 13, 2004, the NTSB issued a recommendation to OPS to issue an advisory bulletin to liquid pipeline operators to validate the accuracy of their tank strapping tables.
The breakout tank that exploded contained an internal floating roof system equipped with pontoons that float on top of the product at a certain level. The tank also had legs that supported the roof whenever the product was drained and the volume of liquid in the tank decreased to the level at which the roof no longer floated. Additionally, the tank had two Supervisory Control and Data Acquisition System (SCADA) alarms to alert controllers when the volume was nearing the level at which the roof would no longer float. The alarm set points were based on the landed height of the floating roof assumed in the operator's strapping table.
NTSB determined that based on the height measurement of the floating roof documented on the construction inspection report, and based on measurements investigators made after the accident, the strapping table was incorrect. Specifically, the distance from the bottom of the pontoon to the datum plate was found to be higher than indicated on the pre-accident strapping table. The surface of the charged diesel was within approximately two inches of the pontoons at the time of the explosion. This, according to NTSB, is the most likely time for a static discharge to occur. Based on this finding, as well as other contributing factors, the NTSB determined that an incorrect measurement on the strapping table contributed to the cause(s) of the accident.
OPS seeks to advise operators that they should review and, if necessary, revise their breakout tank operating procedures to minimize risk. The strapping tables should be validated to reduce the potential for errors that may lead to dangerous conditions, such as static discharge inside a tank after a floating roof has been either intentionally or unintentionally landed. Pipeline operators, therefore, may need to adjust the measurements on their strapping tables to ensure accuracy.
Pipeline and Hazardous Materials Safety Administration (PHMSA), U.S. Department of Transportation (DOT).
Notice; Petition for Waiver.
Enstar Natural Gas Company (Enstar) has petitioned the Office of Pipeline Safety (OPS) for a waiver of the pipeline safety regulation that prohibits tracer wire from being wrapped around the pipe.
Persons interested in submitting written comments on the waiver request described in this Notice must do so by May 6, 2005. Late filed comments will be considered so far as practicable.
You may submit written comments by mailing or delivering an original and two copies to the Dockets Facility, U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. The Dockets Facility is open from 10 a.m. to 5 p.m., Monday through Friday, except on Federal holidays when the facility is closed. Alternatively, you may submit written comments to the docket electronically at the following Web address:
All written comments should identify the docket and notice numbers stated in the heading of this notice. Anyone who wants confirmation of mailed comments must include a self-addressed stamped postcard. To file written comments electronically, after logging on to
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the
James Reynolds by phone at 202-366-2786, by fax at 202-366-4566, by mail at DOT, PHMSA, Office of Pipeline Safety, 400 7th Street, SW., Washington, DC 20590, or by e-mail at
The pipeline safety regulation at 49 CFR 192.321(e), Installation of plastic pipe, requires plastic pipe that is not encased to have an electrically conducting wire or other means of locating the pipe while it is underground. Tracer wire may not be wrapped around the pipe and contact with the pipe must be minimized but is not prohibited. Tracer wire or other metallic elements installed for pipe locating purposes must be resistant to corrosion damage, either by use of coated copper wire or by other means.
Enstar is requesting a waiver from § 192.321(e) because lightning strikes are rare in their service area, and Enstar believes there will be more, not fewer, incidents on their pipeline if they are forced to discontinue the practice of wrapping tracer wire around their plastic pipe.
According to Enstar, the Bureau of Land Management (BLM) tracks occurrences of lightning strikes to monitor forest fire activity. BLM has lightning detection systems throughout Alaska in locations were lightning strikes are frequent, mainly north and west of the Alaska Range. Lightning strikes are recorded by electrical sensors at nine stations in Alaska. Where lightning strikes are not common, such as south and east of the Alaska Range, lightning detection systems are not installed. Enstar's service area is in south central Alaska, an area without lightning detection systems. Since 1972, Enstar's standard practice has been to wrap tracer wire around their plastic pipe. Because of the unique geographical and climatic conditions of the area, lightning strikes on their plastic pipe system are extremely rare. In 32 years, Enstar has recorded only one confirmed incident due to lightning strikes.
Enstar contends that their pipeline will suffer more damages if they are not allowed to wrap tracer wire around their pipeline. Enstar performs approximately 500 excavations per year due to third party damages and 17,000 to 18,000 line locates each year. Enstar contends that this regulation is designed to redress a problem that does not exist within the Enstar pipeline service area.
For the reasons cited above, Enstar is requesting a waiver from the pipeline requirements at § 192.321(e). Enstar's waiver request is available for review in the docket. OPS is seeking comments on the Enstar's waiver request. After the comments have been received and the comment period has ended, OPS will consider each comment and make a decision whether to grant or deny Enstar's waiver request. OPS' decision will be published in the
49 U.S.C. 60118 (c) and 49 CFR 1.53.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8878-A, IRS e-file Electronic Funds Withdrawal Authorization for Form 7004.
Written comments should be received on or before June 6, 2005 to be assured of consideration.
Direct all written comments to Glenn Kirkland, Internal Revenue Service, room 6516, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins, at (202) 622-6665, or at Internal Revenue Service, room 6516, 1111 Constitution Avenue NW., Washington, DC 20224, 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, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Publication 3319, Low-Income Taxpayer Clinics—2002 Grant Application Package and Guidelines.
Written comments should be received on or before June 6, 2005 to be assured of consideration.
Direct all written comments to Glenn P. Kirkland, Internal Revenue Service, room 6516, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of publication should be directed to Allan Hopkins, at (202) 622-6665, or at Internal Revenue Service, room 6516, 1111 Constitution Avenue NW., Washington, DC 20224, 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, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 3975, Tax Professionals Annual Mailing List Application and Order Blank.
Written comments should be received on or before June 6, 2005 to be assured of consideration.
Direct all written comments to Glenn P. Kirkland, Internal Revenue Service, room 6519, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins, at (202) 622-6665, or at Internal Revenue Service, room 6516, 1111 Constitution Avenue, NW., Washington, DC 20224, 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, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8848, Consent to Extend the Time To Assess the Branch Profits Tax Under Regulations Sections 1.884-2(a) and (c).
Written comments should be received on or before June 6, 2005 to be assured of consideration.
Direct all written comments to Glenn P. Kirkland, Internal Revenue Service, room 6516, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins, at (202) 622-6665, or at Internal Revenue Service, room 6516, 1111 Constitution Avenue, NW., Washington, DC 20224, 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, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, REG-106527-98 (TD 8902), Capital Gains, Partnership, Subchapter S, and Trusts Provisions (§ 1.1(h)-1(e)).
Written comments should be received on or before June 6, 2005 to be assured of consideration.
Direct all written comments to Glenn P. Kirkland, Internal Revenue Service, room 6516, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Allan Hopkins, at (202) 622-6665, or at Internal Revenue Service, room 6516, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The burden estimates for requirement is reflected in the burden estimates for: Form 1040, U.S. Individual Income Tax Return; Form 1065, U.S. Partnership Return of Income; Form 1041, U.S. Income Tax Return for Estates and Trusts; and Form 1120S, U.S. Income Tax Return for an S Corporation.
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.
Publication of the inflation adjustment factor, nonconventional source fuel credit, and reference price for calendar year 2004 as required by section 29 of the Internal Revenue Code (26 U.S.C. section 29). The inflation adjustment factor, nonconventional source fuel credit, and reference price are used in determining the tax credit allowable on the sale of fuel from nonconventional sources under section 29 during calendar year 2004.
The 2004 inflation adjustment factor, nonconventional source fuel credit, and reference price apply to qualified fuels sold during calendar year 2004.
For questions about how the inflation adjustment factor is calculated—Wu-Lang Lee, RAS:R:TSBR, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC 20224, Telephone Number (202) 874-0585 (not a toll-free number).
For all other questions about the credit or the reference price—Kelly Morrison-Lee, CC:PSI:7, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC 20224, Telephone Number (202) 622-3120 (not a toll-free number).
The Department of Veterans Affairs (VA) gives notice under the Public law 92-463 (Federal Advisory Committee Act) that the Advisory Committee on CARES Business Plan Studies will meet on April 20, 2005, at the Canadaigua VA Medical Center, Building 5, Auditorium, 400 Hill Avenue, Canadaigua, NY 144224. The meeting will begin at 10:30 a.m. and is open to the public.
The purpose of the Committee is to provide advice to the Secretary of Veterans Affairs on proposed business plans at those VA facility sites identified in May 2004 as requiring further study by the Capital Asset Realignment for Enhanced Services (CARES) Decision document.
The agenda will include presentations on objectives of the CARES project and the project's timeframes. Additional presentations will focus on the VA-selected contractor's methodology and tools to develop business plan options, as well as the methodology for gathering and evaluating stakeholder input. The agenda will also accommodate public commentary on site-specific issues.
Interested persons may attend and present oral or written statements to the Committee. For additional information regarding the meeting, please contact Mr. Jay Halpern, Designated Federal Officer, (00CARES), 810 Vermont Avenue, NW., Washington, DC 20024 by phone at (202) 273-5994, or by e-mail at
By Direction of the Secretary.
Employee Benefits Security Administration, DOL.
Adoption of amended and restated Voluntary Fiduciary Correction Program.
This Notice contains an update, which amends and restates the Employee Benefits Security Administration's Voluntary Fiduciary Correction Program (the VFC Program or Program). The VFC Program permits certain persons to avoid potential civil actions and civil penalties under the Employee Retirement Income Security Act (ERISA) by voluntarily taking steps to correct violations that would ordinarily give rise to such actions and penalties. Based on its experience since adoption of the VFC Program in March 2002, the Employee Benefits Security Administration (EBSA) has identified certain changes that will both simplify and expand the original VFC Program, thereby making the Program easier for, and more useful to, employers and others who wish to avail themselves of the relief provided by the Program. EBSA is inviting comments from interested persons on the revisions to the VFC Program described in this document. At the same time, EBSA is making the simplified and expanded Program available immediately to those who wish to rely on the revisions in seeking VFC Program relief.
This Notice is effective April 6, 2005.
Written comments on the Notice should be received by EBSA on or before June 6, 2005.
Comments on the amendments to the VFC Program (preferably at least three copies) should be addressed to the Office of Regulations and Interpretations, Employee Benefits Security Administration, U.S. Department of Labor, Room N-5669, 200 Constitution Avenue NW., Washington, DC 20210, Attn: Voluntary Fiduciary Correction Program. Comments also may be submitted electronically to
All comments received will be available for public inspection at the Public Disclosure Room, N-1513, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210.
For Questions Regarding the VFC Program Amendments: Contact Kristen L. Zarenko, Office of Regulations and Interpretations, Employee Benefits Security Administration, (202) 693-8510.
The Voluntary Fiduciary Correction Program was adopted by EBSA of the Department of Labor (Department) on a permanent basis in March 2002 (the original VFC Program).
The VFC Program describes: how to apply for relief; the specific transactions covered;
While the original VFC Program has been very successful in encouraging and facilitating the correction of violations of ERISA's fiduciary responsibility and prohibited transaction rules, EBSA believes, based on its own experience to date, as well as comments from employee benefit plan practitioners, that changes to the Program are needed to further encourage utilization of the Program. These changes will improve administration of the Program by EBSA's Regional Offices by which the revised VFC Program will continue to be administered. To this end, EBSA is publishing in this Notice an updated and revised VFC Program containing several changes (the revised VFC Program), discussed below, on which EBSA is inviting public comment. As also discussed below, EBSA is making the revised VFC Program effective on publication of this Notice in order to enable employers, plan fiduciaries and others to avail themselves of the simplified processes and new covered transactions during the interim period until the adoption of final changes to the Program.
EBSA also is proposing amendments to PTE 2002-51 to accommodate a new transaction contained in the revised VFC Program. These amendments also appear in the Notice section of today's
Except as discussed below, the revised VFC Program, as set forth herein, is unchanged from the Program adopted in 2002. The Program is set forth in its entirety in this Notice to facilitate both utilization and review by interested persons. The following is an overview of changes applicable to the revised VFC Program.
To encourage use of the Program, EBSA is making available a model VFC Program application form. This model form is set forth in Appendix E of this Notice. EBSA also will be making the model form available to the public on its Web site.
In brief, the model form provides an outline for applicants of the information and supplemental documentation that must be included with the application to help ensure that the applications are correct and complete. The model form includes the Program's mandatory checklist, which is also separately set forth in Appendix B of this Notice. Use of the model form, however, is not a substitute for an applicant's careful review of Program conditions and requirements. For example, all applications must include a completed penalty of perjury statement.
As part of its effort to streamline and simplify the VFC Program, EBSA reviewed the supporting documents required to be filed as part of the application process. On the basis of this review, EBSA concluded that document requirements could be reduced in certain instances without compromising EBSA's review of applications. In particular, EBSA has made the following changes to the documentation requirements.
Section 6 of the Program has been revised to eliminate the requirement that applicants provide certain information relating to the plan's fidelity bond.
With regard to the correction of delinquent participant contributions or loan repayments under Section 7.A.1. of the Program, the Program is being revised to permit applicants correcting breaches that involve (i) amounts below $50,000, or (ii) amounts greater than $50,000 that were remitted within 180 calendar days after receipt by the employer to provide summary documentation. EBSA believes that introducing more simplified documentation requirements in certain cases rather than the detailed information and copies of accounting and payroll records required under the original VFC Program will streamline the application process, increase the efficiency of EBSA's reviewers, and be less burdensome for applicants making smaller corrections. Based on EBSA's experience to date, the majority of VFC Program applicants, under the revised Program, would be able to avail themselves of this reduced documentation requirement.
In the course of EBSA's administration of the VFC Program, a number of applicants expressed concern about the complexities attendant to calculating amounts required for transaction corrections under the Program. In an effort to address applicant concerns and facilitate corrections for purposes of the revised Program, EBSA is simplifying the definitions of both Lost Earnings and Restoration of Profits set forth in Section 5(b) of the Program.
The Program has always required that Plan Officials determine the correction amount to be restored to the plan based on either the losses to the plan resulting from a breach or the profits gained from improper use of plan assets, as required by section 409 of ERISA. The correction amount generally consists of two components: (1) Principal Amount and (2) Lost Earnings or Restoration of Profits. In broad terms, the Principal Amount is the amount of plan assets that would have been available to the plan if the breach had not occurred. Plan Officials must always restore the Principal Amount to the plan.
Under the original VFC Program, Plan Officials generally calculated Lost Earnings by comparing two hypothetical amounts that a plan might have earned on the Principal Amount between the date of the breach (the Loss Date) and the date the Principal Amount is restored to the plan (the Recovery Date), as well as any interest on such earnings because of payment of Lost Earnings after the Recovery Date. The first earnings amount assumed that the Principal Amount had been appropriately invested under ERISA, while the second assumed that the Principal Amount had earned interest at a rate defined in section 6621 of the Internal Revenue Code (Code). Utilizing this approach, Plan Officials were then required to restore the higher of these two hypothetical amounts to the plan.
In an effort to simplify this component of the correction amount, EBSA is revising the method of calculating Lost Earnings and interest, if any, to use factors provided under IRS Revenue Procedure 95-17.
First, applicants must determine the applicable corporate underpayment rate(s) established under section 6621(a)(2) of the Code for each quarter (or portion thereof) for the period beginning with the Loss Date and ending with the Recovery Date. These rates are displayed on EBSA's Web site and will be updated when necessary. Second, applicants must select the applicable factor(s) under IRS Revenue Procedure 95-17 for such quarterly underpayment rate(s) for each quarter (or portion thereof) of the period beginning with the Loss Date and ending with the Recovery Date. Third, applicants multiply the Principal Amount by the first applicable factor to determine the amount of earnings for the first quarter (or portion thereof). If the Loss Date and Recovery Date are within the same quarter, this initial calculation is complete. However, if the Recovery Date is not in the same quarter as the Loss Date, the applicable factor for each subsequent quarter (or portion thereof) must be applied to the sum of the Principal Amount and all earnings as of the end of the immediately preceding quarter (or portion thereof), until Lost Earnings have been calculated for the entire period, ending with the Recovery Date.
In situations when the Lost Earnings amount is paid to the plan after the Recovery Date, applicants must calculate an amount of interest that the Lost Earnings would have earned during the time period between the Recovery Date and such payment date. This calculation also has been simplified to use the factors provided under IRS Revenue Procedure 95-17. Applicants must use the same method as in calculating Lost Earnings, but referencing the period beginning on the Recovery Date and ending with the payment date and applying the first applicable factor to Lost Earnings instead of the Principal Amount. Under the original Program, the Plan Official would have had to calculate and compare two assumed amounts of interest that would have been earned if the Lost Earnings amount had been restored to the plan on the Recovery
If the sum of Lost Earnings and any interest on Lost Earnings exceeds $100,000, applicants must then re-determine the amount of Lost Earnings and any interest on Lost Earnings using the same method discussed above, but substituting the applicable underpayment rates under section 6621(c)(1) of the Code for the rates previously used under section 6621(a)(2). These rates also are displayed on EBSA's Web site and will be updated when necessary.
Applicants either may use the Online Calculator to facilitate the calculation of these Lost Earnings amounts, as explained below, or perform the calculation manually. In either case, information sufficient to verify the correctness of the amounts to be paid to the plan must be included as part of the VFC Program application.
In a limited set of circumstances, Plan Officials are required to determine Restoration of Profits as a correction amount component. Under the original VFC Program, Plan Officials generally calculated Restoration of Profits when a breach involved the use of the Principal Amount by a fiduciary, plan sponsor or other Plan Official for a specific purpose resulting in an actual profit that could be determined. Plan Officials were required to compare this actual profit to a second amount that assumed that the Principal Amount had earned interest at a rate defined in section 6621 of the Code. The higher of these two amounts was defined as Restoration of Profits. Plan Officials were then required to compare this Restoration of Profits amount to the Lost Earnings amount and restore the higher amount to the plan.
In an effort to simplify this component of the correction amount, EBSA is revising the Program to require the calculation of a Restoration of Profits amount only when the Principal Amount was used by a fiduciary, plan sponsor or other Plan Official for a specific purpose such that a profit resulting from the breach is determinable. EBSA's experience suggests that more commonly, the Principal Amount is commingled with other funds of the plan sponsor or a fiduciary, so that a profit from the use of the Principal Amount cannot definitively be determined. As a consequence, EBSA anticipates that applicants under the revised Program will be using the simplified Lost Earnings calculation more frequently than Restoration of Profits.
Under the revised Program, Restoration of Profits is defined to incorporate two amounts: (i) The amount of profit made on the use of the Principal Amount, and (ii) if the profit is restored to the plan on a date later than the date on which the profit was realized (
EBSA is simplifying the determination of Restoration of Profits under the revised Program to use factors provided under IRS Revenue Procedure 95-17 in calculating the interest amount. First, applicants must determine the applicable corporate underpayment rate(s) established under section 6621(a)(2) of the Code for each quarter (or portion thereof) for the period beginning with the date the profit was realized (
If the Restoration of Profits amount exceeds $100,000, applicants must then recalculate the interest amount for Restoration of Profits using the same method discussed above, but substituting the applicable underpayment rates under section 6621(c)(1) of the Code for the rates previously used under section 6621(a)(2).
To more easily perform these interest amount calculations, applicants may use the Online Calculator. Applicants also may perform these calculations manually. In either case, information sufficient to verify the correctness of the amounts to be paid to the plan must be included as part of the VFC Program application.
In situations when the Restoration of Profits amount can be determined, the revised VFC Program requires the Plan Official to restore Restoration of Profits to the plan as a component of the correction amount only if Restoration of Profits exceeds the Lost Earnings amount plus interest, if any.
To facilitate use of the Program, EBSA is providing an Online Calculator on its Web site, which is an Internet based compliance assistance tool that may be used by applicants to automatically calculate Lost Earnings and interest, if any, and the interest amount for Restoration of Profits. Use of the Online Calculator will provide accuracy, ensure consistency and expedite review of applications by EBSA. While EBSA anticipates that most applicants will use the Online Calculator under the revised Program, applicants also may perform a manual calculation, as explained above, using the applicable factors under IRS Revenue Procedure 95-17.
In using the Online Calculator to determine Lost Earnings and interest, if any, applicants input four data elements: the (1) Principal Amount, (2) Loss Date, and (3) Recovery Date, and if the final payment will occur after the Recovery Date, (4) the date of such final payment. The Online Calculator selects the applicable factors under Revenue Procedure 95-17 after referencing the underpayment rates over the relevant time period. The Online Calculator then automatically applies the factors to provide applicants with the amount of Lost Earnings and interest, if any, that must be paid to the plan.
In using the Online Calculator to determine the interest amount for Restoration of Profits, applicants input three data elements: (1) The amount of profit, (2) the date the amount of profit was realized (
On the basis of EBSA's review of the VFC Program, EBSA believes it is appropriate to revise the Program to include a correction of a transaction that permits the plan to divest, rather than continuing to hold in its portfolio, a previously purchased asset that is currently classified as illiquid. This new transaction is described in Section 7.D.6. of the revised Program.
Specifically, the new transaction covers circumstances where a plan is holding an illiquid asset and a plan fiduciary has determined that continued holding of such asset is not in the best interest of the plan or the plan's participants and beneficiaries, and following reasonable efforts to dispose of the asset, the only available purchaser is a party in interest. The revised Program describes three scenarios for the plan's acquisition of the illiquid asset, each of which results in the plan's holding of the illiquid asset, for which the correction is determined to be necessary. In the first scenario, the plan purchases an asset at a price not greater than fair market value at that time, but because the acquisition was from a related party, it was nonetheless a prohibited transaction. In the second scenario, the plan purchases an asset from an unrelated third party in an acquisition that was not a prohibited transaction under ERISA, but the plan fiduciary failed to appropriately discharge his or her fiduciary duties with respect to the purchase. For example, the fiduciary's purchase of a limited partnership interest from an unrelated third party was imprudent and inconsistent with the objectives contained in the plan's investment guidelines. In the third scenario, the plan purchases an asset from an unrelated third party in an acquisition that was not a prohibited transaction under ERISA, and the plan fiduciary appropriately discharged his or her fiduciary duties with respect to the purchase.
Subsequent to an acquisition pursuant to one of the foregoing scenarios, the plan fiduciary concludes that the continued holding of the asset is not in the interest of the plan. To correct the transaction, the revised VFC Program requires the fiduciary to classify the asset as illiquid by making the following determinations: (1) That the asset has failed to appreciate, failed to provide a reasonable rate of return or has caused a loss to the plan; (2) that the sale of the asset is in the best interest of the plan; and (3) following reasonable efforts to sell the asset to a non-party in interest, that the asset cannot immediately be sold for its original purchase price, or its current fair market value, if greater. Illiquid assets, among other things, could include restricted and thinly traded stock, limited partnership interests, real estate and collectibles.
The required correction permits the sale of the illiquid asset to a party in interest, provided the plan is returned to a financial position that is no worse than if the acquisition had never taken place. Accordingly, a plan must receive the higher of the fair market value of the asset on the date of the correction or its original purchase price, plus incidental costs. For purposes of the Class Exemption, corrective relief would, upon adoption of the amendments, extend to both the acquisition of the asset by the plan, if that acquisition would otherwise have been a prohibited transaction, and the disposition of the illiquid asset by sale to a party in interest, which would itself be a prohibited transaction but for the exemption.
Often plans incorporate in their terms with respect to participant loan programs a provision that a participant loan will not exceed the limitations set by section 72(p) of the Code.
The new transactions describe situations when a plan extends a loan (i) to a participant who is a party in interest with respect to the plan based solely on his or her status as an employee, and (ii) either the amount or duration of the loan exceeds that permitted under the applicable plan provisions incorporating the limitations of section 72(p) of the Code. These loans are prohibited transactions that fail to qualify for the statutory exemption in section 408(b)(1) of ERISA because the loans were not made in accordance with the specific plan loan provisions.
To correct a loan that exceeded the amount limitation, the Program requires the participant to pay back to the plan the excess amount of the loan. For example, if on the date the loan was made, a participant should have received a loan no greater than $5,000, but the participant erroneously received a loan for $7,000, then the participant must pay $2,000 back to the plan on the date of correction. Then, Plan Officials must reform the loan to amortize the remaining principal balance as of the date of correction over the remaining duration of the original loan, making any required adjustments to the monthly repayment amount. Plan Officials otherwise must continue to enforce all other terms of the original loan agreement.
To correct a loan that exceeded the duration limitation, the Program requires that Plan Officials reform the duration of the loan to complete repayment within the maximum term permitted under the plan loan provisions. For example, if a loan should have been for a term of five years, but the participant erroneously received a loan with scheduled repayments over ten years, Plan Officials must reform the loan. The reformed loan must be paid back within five years from the date of loan origination, and Plan Officials must make any necessary changes to the monthly repayment amount. If more than five years has passed since the date of loan origination, then this correction is not available. Plan Officials otherwise must continue to enforce all other terms of the original loan agreement.
EBSA is aware that these plan loan transactions also have tax consequences; they require income tax reporting as a deemed distribution by the plan fiduciaries, which triggers income tax liabilities for participants. Informal discussion between EBSA and the staffs of the Internal Revenue Service (IRS) and Treasury Department have confirmed their intent to develop a coordinating Employee Plans
Subsequent to the publication of the original VFC Program, EBSA issued Advisory Opinion 2002-02A (May 17, 2002) relating to the time frames for repayment of participants' loans to pension plans. The Department then issued guidance in a question and answer format under the VFC Program stating that applicants could correct the failure to forward participant loan repayments to a plan in a timely fashion under the Program in the manner set forth in this Advisory Opinion. In conjunction with this guidance, the Department included, in its final class exemption providing relief for certain transactions described in the Program,
In addition to the revisions described above, EBSA is making the following changes in an effort to further refine the scope of the Program and facilitate its administration of the Program via the Regional Offices.
Eligibility to participate in the revised Program pursuant to Section 4 (VFC Program Eligibility), paragraph (a), is conditioned on neither the plan nor the applicant being “Under Investigation.” For purposes of the revised VFC Program, EBSA has changed the definition of “Under Investigation” in Section 3(b)(3). Upon review of the prior definition, EBSA concluded that in some respects the definition was too broad and in other respects too narrow. For example, the original VFC Program provided that a person would be considered “Under Investigation” only if he or she were subject to an investigation under either section 504 of ERISA by EBSA or any criminal statute involving a transaction affecting the plan. EBSA believes that if another Federal agency (
EBSA further modified the “Under Investigation” definition to include notice of a Federal agency's intent to conduct an investigation, recognizing that the parties to the transaction may actually be on notice of an agency's intent to conduct an investigation well in advance of the beginning of the actual investigation. Again, EBSA believes that, while mere contact by an agency official generally is insufficient, communications notifying the parties of a Federal agency's intent to conduct an investigation or examination should, for purposes of eligibility for the VFC Program, be the same as if the investigation had started. It should be noted, however, that the plan, the applicant or plan sponsor will be considered “Under Investigation” only if the investigation or examination at issue is in connection with an act or transaction involving the plan. For example, if a plan sponsor is notified by a Federal agency of an investigation of the company regarding a Federal contract, such notification would not affect the plan's eligibility to participate in the VFC Program because the investigation does not involve the plan or an act or transaction involving the plan.
For purposes of the revised VFC Program, EBSA also has modified the Penalty of Perjury Statement required by Section 6(g) of the Program. This amendment significantly simplifies the statement and more closely conforms the required representations to the revised Program's eligibility criteria. Under the revised Program, the statement will continue to require a declaration that the application and all supporting documents, based on knowledge and belief, are true, correct, and complete.
For purposes of the revised VFC Program, EBSA has added a provision to the Application Procedures set forth in Section 6(j) of the Program, Submission of Additional Documentation. This provision is intended to make clear that EBSA retains the right to make written requests for any supplemental documentation necessary for a complete examination and review of the application under the Program. If an applicant fails to respond with the requested documentation within the specified time period, EBSA may suspend further review of the application and consider what, if any, other action may be appropriate with respect to the identified violations. EBSA believes that this new provision will improve the efficiency of the Program and encourage timely communications among Program applicants and EBSA reviewers.
If a person files an application under the VFC Program, but the corrective action falls short of a complete and acceptable correction, EBSA may reject the application and consider appropriate action, including assessment of a section 502(l) penalty. However, no section 502(l) penalty would be imposed on the basis of any amounts restored to the plan prior to filing a Program application. The penalty would only apply to the additional recovery amount, if any, paid to the plan pursuant to a court order or a settlement agreement with the Department.
Full correction under the VFC Program does not preclude any other person or governmental agency, including the IRS, from exercising any rights it may have with respect to the transactions that are the subject of the application. The IRS has indicated to the Department that the federal tax treatment of a breach and correction under the VFC Program (including the federal income and employment tax consequences to participants, beneficiaries, and plan sponsors) are determined under the Code and that, based on its review of the revised Program, except in those instances where the fiduciary breach or its correction involve a tax abuse, a correction under the VFC Program for a breach that constitutes a prohibited transaction under section 4975 of the Code generally will constitute correction for purposes of section 4975 and a correction under the VFC Program
Although the Department is not required to seek public comments on an enforcement policy, the Department solicits comments from the public on the revisions to the VFC Program discussed in this Notice, including whether there are different ways in which the new transactions included in the Program could be corrected in accordance with the goals of the Program.
At the same time, the Department has determined that the relief afforded by the revised VFC Program should be made available upon publication of the revised Program in the
Under Executive Order 12866, the Department must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive Order and subject to review by the Office of Management and Budget (OMB). Under section 3(f) of the Executive Order, a “significant regulatory action” is an action that is likely to result in a rule (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. OMB has determined that this action is not a “significant regulatory action” under Executive Order 12866, section 3(f). Accordingly, an assessment of the potential costs and benefits under section 6(a)(3) of that order is not required. In order to better inform the public, however, the Department has included below a brief analysis of the costs and benefits attributable to the updated and revised Program.
The Department continues to believe that the benefits of the VFC Program substantially outweigh its costs, because participation is voluntary, the administrative cost of correcting a potential fiduciary breach through voluntary participation in the VFC Program is lower than the administrative cost of a correction in connection with a civil action and civil penalties, and the value and security of the assets of the plans participating in the VFC Program are preserved or increased. The VFC Program imposes no costs unless Plan Officials choose to avail themselves of the opportunity to correct a potential fiduciary breach under the terms of the VFC Program. Costs to Plan Officials in applying under the VFC Program include the expenses related to making a correction in accordance with Program conditions, and completing the application to be submitted to the Department. Benefits for Plan Officials include the reduction of risk and savings of penalties that would otherwise be payable on the amount of assets recovered following a civil action, in addition to the savings of resources that might have been devoted to such a civil action.
An additional benefit of the VFC Program accrues to participants and beneficiaries through the correction of violations and restoration of losses or profits that arise from the reversal of impermissible transactions, resulting in greater security of plan assets and future benefits.
The Department expects that the revised VFC Program will be easier and more useful for potential applicants. The greater efficiency and accessibility that will result from the availability of a model application form, the reduced documentation requirements, simplification of the correction amount calculation, including the introduction of the Online Calculator and the factors provided under IRS Revenue Procedure 95-17, addition of new transaction categories, and other clarifying modifications are expected to make the Program easier to use, to lessen the cost of participation in many instances, and to increase efficiency for both applicants and reviewers.
The VFC Program has been very successful to date in encouraging and facilitating the correction of violations. The Department anticipates that the revised VFC Program will encourage Plan Officials, who otherwise might not do so, to correct violations and reimburse plan losses.
The Department is unable to predict with certainty either the reduction in application costs that will arise from simplification of application and procedural requirements, or the potential increase in participation that will be associated with these revisions. However, based on the Department's experience to date, and comments from employee benefit plan practitioners, the availability of the model application form, streamlining of documentation requirements, and simplification of the correction amount calculation would make the Program substantially easier to use. The voluntary model form should offer an easily accessible outline for applicants to use in ensuring that their applications are complete, which will reduce or eliminate common application errors that result in processing delays and potential rejections.
The reduction in the extent of documentation required for corrections involving delinquent contributions, in particular, should decrease the cost of participation for many Plan Officials because the vast majority of applications based on the delinquent remittance of participant funds have entailed breaches that involve amounts below $50,000, or amounts greater than $50,000 that were repaid within 180 days. The delinquent remittance of participant contributions is also the most common type of violation corrected to date under the VFC Program. Where it applies, this reduction is substantial in that it permits the submission of summary information rather than the detailed accounting records previously required.
Similarly, the modification of the method of calculating Lost Earnings or Restoration of Profits will simplify the correction in two significant ways. First, the revision in most cases eliminates the need for multiple calculations and a comparison of the two hypothetical amounts representing losses based on
Again, the Department anticipates that this simplification will have a sizeable aggregate effect. This is because the Online Calculator is expected to be particularly useful in the correction of violations involving the delinquent remittance of participant contributions. Not only is this the most common type of violation corrected to date, it is also a violation likely to involve multiple Loss Dates, further complicating the computation of correction amounts. The revised Program does retain flexibility for applicants by permitting manual calculations using the IRS factors.
The Department previously estimated the average administrative cost of participation at about $3,000, consisting of about 39 hours of purchased professional services and Plan Official time for the correction and application. The actual cost is expected to be highly variable. However, if the model form, streamlined documentation, and simplification of correction amount calculation together served to reduce the average application time by eight to ten hours, spread over purchased professional services and Plan Officials, the average cost per applicant would be reduced to between $2,500 and $2,300. For the 700 plans estimated to participate in the VFC Program annually, this would amount to an aggregate savings of about $400,000 to $500,000 per year. This cost contrasts with fiscal year 2004 corrections in 474 cases restoring over $260 million.
The Department is unable to estimate the increase in participation in the Program that may result from these revisions, largely because participation has continued to increase substantially. Participation roughly doubled between fiscal years 2003 and 2004. Many factors may contribute to this steady increase, such that it is not possible to observe a relationship between the administrative cost of participation in the Program and the decision to participate. Although the degree to which perceived complexities in the Program have discouraged participation is unknown, information provided by practitioners suggests that these changes will encourage greater participation.
The inclusion in the Program of new covered transactions, involving certain loans to participants, the delinquent remittance of participant loan repayments, and the purchases and sales, of illiquid assets as determined under the VFC Program, along with the proposed prohibited transaction class exemption also published today that relates to the purchase and sale of illiquid assets, is also expected to make the relief available under the Program accessible to more Plan Officials and further increase participation. This assumption is based on both feedback from potential applicants, and on the experience of the Department in administering the Program. The Department has not ascertained a basis for estimating the volume of increased participation that might result from these new covered transactions and related prohibited transaction class exemption.
The Department actively monitors the use of the Program, and will continue at this time to project annual Program utilization by about 700 plans until the rate of participation has become more consistent.
Beyond these administrative impacts, the Department has also considered the potential economic impacts of eliminating the requirement for the comparison of two hypothetical correction amounts for the calculation of correction amounts. Plan Officials were previously required to restore the higher of earnings as though the principal had been invested appropriately under ERISA, and earnings as though the principal had accrued interest at the rates specified in Code section 6621. The Department acknowledges that the correction amount under the revised Program may in some instances be lower than the higher of the former two hypothetical amounts.
In eliminating dual calculation methods and offering the Online Calculator and IRS factors, the Department has attempted to strike a reasonable balance between the advantages of simplicity, which may include lower administrative costs and a greater likelihood of a timely correction, and the potentially greater precision of applying multiple rates of return based on the investment alternatives involved. The Department welcomes comments on the possible economic consequences of the revised provisions relating to the correction amount.
The Information Collection Request (ICR) included in the 2002 Program and PTE 2002-51 is currently approved by the Office of Management and Budget under control number 1210-0118. This approval is scheduled to expire on December 31, 2006. The amendments to the original VFC Program described earlier in this preamble may be expected to modify burden to some degree. However, with the exception of the change in the documentation requirements for the delinquent remittance of participant funds, these amendments do not in the Department's view constitute a substantive or material modification of the existing ICR. Accordingly, the Department has not addressed changes other than those made to Section 7.A.1.c. in a submission for the approval of a revision to the ICR in connection with these amendments, or with the proposed amendments to PTE 2002-51, published separately in this issue of the
As noted, to facilitate applicants' use of the Program, the Department has developed an optional model application form (Appendix E). Potential applicants and practitioners have strongly encouraged EBSA to develop such a form to assist applicants to readily identify the Program requirements, and to verify that they have provided all of the information and supplementary documentation necessary for a valid application. Use of the form may help applicants avoid common errors that frequently result in processing delays or rejections.
Although the model form may reduce burden, it follows the requirements set forth in the Program, and would not collect information not already required to be provided by an applicant under the existing Program. As such, the model application form will provide ready access to Program requirements previously set out in the text of the Program, and increase certainty about compliance with the application requirements, without altering the existing ICR.
Completion and submission of the checklist (Appendix B) was required in the original program, and is revised in only its more user-friendly format. Elements of the checklist now appear on a separate Appendix. It should be noted that the required checklist appears twice within the Appendices to the Program.
The Department has also modified the VFC Program's application requirements by clarifying certain terms and representations to be made in the application, by describing the process by which the Department when necessary may request additional documentation, and eliminating previously required information related to the plan's fidelity bond. These modifications are also made with intention of making the Program easier and more efficient to use, but do not substantively or materially alter the existing ICR.
In the Department's view, the amendments to Section 7.A.1.c. do constitute a substantive and material change to the existing ICR because they will substantially reduce burden. The revision of the currently approved ICR pertains to documentation requirements for Delinquent Participant Contributions and Delinquent Participant Loan Repayments to Pension Plans. Revised provision 7.A.1.c. eliminates under specific circumstances the requirement for the applicant to provide accounting and payroll records to document the date and amount of each contribution at issue. The Plan Official is relieved from providing the more detailed documentation if restored participant contributions and/or repayments (exclusive of Lost Earnings) total $50,000 or less, or exceed $50,000 and were remitted to the plan within 180 days from the date such amounts were received by the employer or otherwise payable to the participant in cash. This program change is intended to reduce the burden of participation in the Program.
This revision is expected to impact the burden of the currently approved information collection because the vast majority of violations corrected under the Program involve delinquent participant contributions that totaled $50,000 or less, or were remitted within 180 days. Thus a burden reduction is expected for more than 90% of applicants.
The information collection burden of the VFC Program and related PTE 2002-51 is estimated as follows. The estimates include updated assumptions for compensation rates and mailing costs, and an increase in the number of respondents over the number currently in OMB inventory. For each of 700 plans, 8 hours of time of Plan Officials at $68 per hour, and 5 hours of service provider time at $83 per hour will be required to meet information collection requirements. These components account for 5,600 burden hours and $290,500 in burden cost. Total burden cost includes $2 in mailing costs, for a total of $291,900.
Assuming as many as one-half of applicants also make use of the class exemption when using the Program and that all work is performed by service providers, an additional cost burden of $29,000 arises from developing required notices to interested persons at $83 per hour, and mailing at first class rates for 10% of those notices and the notices to the Department, assuming an average of 136 participants per plan. It is assumed that the remaining notices are delivered electronically. Total cost burden for the information collection provisions of the exemption is $30,900. The total cost of the information collection provisions of the VFC Program and exemption before this revision is $322,800.
The revision in Section 7.A.1.c is estimated to reduce the hours and costs required to comply with the Program's information collection request by about one-half. The burden associated with the exemption is unchanged.
As part of its continuing effort to reduce paperwork and respondent burden, the Department of Labor conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)). This 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, EBSA is soliciting comments concerning the revision of the currently approved information collection request (ICR) included in this Amended and Restated Voluntary Fiduciary Correction Program. A copy of the ICR may be obtained by contacting the PRA addressee shown below.
The Department has submitted a copy of the revised ICR to OMB in accordance with 44 U.S.C. 3507(d) for review of its information collections. The Department and OMB are particularly interested in comments that:
• 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 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.
Comments should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Attention: Desk Officer for the Employee Benefits Security Administration. Although comments may be submitted through June 6, 2005, OMB requests that comments be received within 30 days of publication of the Notice of Adoption of Amended and Restated Voluntary Fiduciary Correction Program.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of the information collection request; they will also become a matter of public record.
This document describes an enforcement policy of the Department, and is not being issued as a general notice of proposed rulemaking. Therefore, the Regulatory Flexibility Act (5 U.S.C. 601
The VFC Program is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
Pursuant to provisions of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), this regulatory action does not include any Federal mandate that may result in annual expenditures by State, local, or tribal governments, or the private sector, of $100 million or more.
Executive Order 13132 (August 4, 1999) outlines fundamental principles of federalism and requires the adherence to specific criteria by Federal agencies in the process of their formulation and implementation of policies that have substantial direct effects on the States, the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This Program would not have federalism implications because it has no 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. Section 514 of ERISA provides, with certain exceptions specifically enumerated that are not pertinent here, that the provisions of Titles I and IV of ERISA supersede any and all laws of the States as they relate to any employee benefit plan covered under ERISA. The requirements implemented in this Program do not alter the fundamental provisions of the statute with respect to employee benefit plans, and as such would have no implications for the States or the relationship or distribution of power between the national government and the States.
Secretary of Labor's Order 1-2003, 68 FR 5374 (Feb 3, 2003). ERISA Sec. 502(a)(2) and (a)(5) also issued under 29 U.S.C. 1132(a)(2) and (a)(5), ERISA Sec. 506(b) also issued under 29 U.S.C. 1136(b).
The purpose of the Voluntary Fiduciary Correction Program (VFC Program or Program) is to protect the financial security of workers by encouraging identification and correction of transactions that violate Part 4 of Title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA). Part 4 of Title I of ERISA sets out the responsibilities of employee benefit plan fiduciaries. Section 409 of ERISA provides that a fiduciary who breaches any of these responsibilities shall be personally liable to make good to the plan any losses to the plan resulting from each breach and to restore to the plan any profits the fiduciary made through the use of the plan's assets. Section 405 of ERISA provides that a fiduciary may be liable, under certain circumstances, for a co-fiduciary's breach of his or her fiduciary responsibilities. In addition, under certain circumstances, there may be liability for knowing participation in a fiduciary breach. In order to assist all affected persons in understanding the requirements of ERISA and meeting their legal responsibilities, the Employee Benefits Security Administration (EBSA) is providing guidance on what constitutes adequate
(a)
(b)
(c)
(2)
(3)
(4)
(5)
(i) EBSA or any other governmental agency from conducting a criminal investigation of the transaction identified in the application;
(ii) EBSA's assistance to such other agency; or
(iii) EBSA making the appropriate referrals of criminal violations as required by section 506(b) of ERISA.
(6)
(i) Seeking removal from positions of responsibility with respect to a plan or other non-monetary injunctive relief against any person responsible for the transaction at issue;
(ii) Referring information regarding the transaction to the Internal Revenue Service (IRS) as required by section 3003(c) of ERISA;
(iii) Imposing civil penalties under section 502(c)(2) of ERISA based on the failure or refusal to file a timely, complete and accurate annual report Form 5500. Applicants should be aware that amended annual report filings may be required if possible breaches of ERISA have been identified, or if action is taken to correct possible breaches in accordance with the VFC Program.
(7)
(8)
(d)
(e)
(f)
(a) The terms used in this document have the same meaning as provided in section 3 of ERISA, 29 U.S.C. section 1002, unless separately defined herein.
(b) The following definitions apply for purposes of the VFC Program:
(1)
(2)
(3)
On March 1 the plan sponsor of a profit sharing plan received written notification from an agent of the IRS that the plan has been scheduled for examination. As of March 1, the plan is ineligible for participation in the VFC Program because the plan sponsor has received a notice from the IRS concerning the IRS's intent to examine the plan.
Assume the same facts as in Example 1, except that the plan sponsor received written notification from a Federal agency of an investigation of the company regarding an alleged workplace safety violation. The plan's eligibility to participate in the VFC Program would not be affected because the investigation does not involve the plan or an act or transaction involving the plan.
Eligibility for the VFC Program is conditioned on the following:
(a) Neither the plan nor the applicant is Under Investigation.
(b) The application contains no evidence of potential criminal violations as determined by EBSA.
(a)
(1) If there is a generally recognized market for the property (
(2) If there is no generally recognized market for the asset, the fair market value of that asset must be determined in accordance with generally accepted appraisal standards by a qualified, independent appraiser and reflected in a written appraisal report signed by the appraiser.
(3) An appraiser is “qualified” if he or she has met the education, experience, and licensing requirements that are generally recognized for appraisal of the type of asset being appraised.
(4) An appraiser is “independent” if he or she is not one of the following, does not own or control any of the following, and is not owned or controlled by, or affiliated with, any of the following:
(i) The prior owner of the asset, if the asset was purchased by the plan;
(ii) The purchaser of the asset, if the asset was, or is now being, sold by the plan;
(iii) Any other owner of the asset, if the plan is not the sole owner;
(iv) A fiduciary of the plan;
(v) A party in interest with respect to the plan (except to the extent the appraiser becomes a party in interest when retained to perform this appraisal for the plan); or
(vi) The VFC Program applicant.
(b)
(2)
(3)
(4)
(5)
(B)
(C)
(D)
(E)
(6)
If the Restoration of Profits amount exceeds Lost Earnings and interest, if any, the Restoration of Profits amount must be paid to the plan instead of Lost Earnings.
(B)
(C)
(D)
(7)
(A)
(B)
(8) The principles of this paragraph (b) are illustrated by example in Appendix D.
(c)
(2) The costs of correction include, where appropriate, such expenses as closing costs, prepayment penalties, or sale or purchase costs associated with correcting the transaction.
(3) The principle of paragraph (c)(1) is illustrated in the following example and in (d) below:
The plan fiduciaries did not obtain a required independent appraisal in connection with a transaction described in Section 7. In connection with correcting the transaction, the plan fiduciaries now propose to have the appraisal performed as of the date of purchase. The plan document permits the plan to pay reasonable and necessary expenses; the fiduciaries have objectively determined that the cost of the proposed appraisal is reasonable and is not more expensive than the cost of an appraisal contemporaneous with the purchase. The plan may therefore pay for this appraisal. However, the plan may not pay any costs associated with recalculating participant account balances to take into account the new valuation. There would be no need for these additional calculations or any increased appraisal cost if the plan's assets had been valued properly at the time of the purchase. Therefore, the cost of recalculating the plan participants' account balances is not a reasonable plan expense, but is part of the costs of correction.
(d)
(e)
Employer X sponsors Plan Y. Employer X submits an application under the VFC Program to correct a failure to timely forward participant contributions to Plan Y. Employer X had paid the delinquent contributions six months late, but had not paid lost earnings on the delinquency. The correction under the VFC Program, therefore, required only payment of Lost Earnings for the six-month delinquency. During the six-month period 25 employees separated from service and rolled over their plan accounts to individual retirement accounts. The amount of lost earnings due to 20 of those former employees is less than $20, and Employer X demonstrates that the cost of making the distribution to those former employees is $27 per individual. Employer X need not make distributions to those 20 former employees. However, the total amount of distributions that would have been due to those former employees must be paid to Plan Y. The payment to Plan Y may be used for any purpose that payments or credits to Plan Y that are not allocated directly to participant accounts are used. Employer X must make distributions to the five former employees who are entitled to receive distributions of more than $20.
(a)
(b)
(c)
(d)
(i) a list of all persons materially involved in the Breach and its correction (
(ii) the employer identification number (EIN), plan number, and address of the plan sponsor and administrator;
(iii) the date the plan's most recent Form 5500 was filed;
(iv) an explanation of the Breach, including the date it occurred;
(v) an explanation of how the Breach was corrected, by whom and when;
(vi) specific calculations demonstrating how Principal Amount and Lost Earnings or, if applicable, Restoration of Profits were computed and an explanation of why payment of Lost Earnings or Restoration of Profits was chosen to correct the Breach.
(e)
(i) copies of the relevant portions of the plan document and any other pertinent documents (such as the adoption agreement, trust agreement, or insurance contract);
(ii) documentation that supports the narrative description of the transaction and its correction;
(iii) documentation establishing the Lost Earnings amount;
(iv) documentation establishing the amount of Restoration of Profits, if applicable;
(v) all documents described in Section 7 with respect to the transaction involved; and
(vi) proof of payment of Principal Amount and Lost Earnings or Restoration of Profits.
(f)
(ii) Examples of acceptable proof of payment include copies of canceled checks, executed wire transfers, a signed, dated receipt from the recipient of funds transferred to the plan (such as a financial institution), and bank statements for the plan's account.
(g)
(h)
(i)
(j)
(k)
EBSA has identified certain Breaches and methods of correction that are suitable for the VFC Program. Any Plan Official may correct a Breach listed in this Section in accordance with Section 5 and the applicable correction method. The correction methods set forth are strictly construed and are the only acceptable correction methods under the VFC Program for the transactions described in this Section. EBSA will not accept applications concerning correction of breaches not described in this Section.
(a)
(b)
(2)
(3) For this transaction, the Principal Amount is the amount of delinquent participant contributions or loan repayments retained by the employer.
(4)
(c)
(1) A statement from a Plan Official identifying the earliest date on which the participant contributions and/or repayments reasonably could have been segregated from the employer's general assets, along with the supporting documentation on which the Plan Official relied in reaching this conclusion;
(2) If restored participant contributions and/or repayments (exclusive of Lost Earnings) (A) total $50,000 or less; or (B) exceed $50,000 and were remitted to the plan within 180 calendar days from the date such amounts were received by the employer, or the date such amounts otherwise would have been payable to the participants in cash (regarding amounts withheld by an employer from employees' paychecks), submit:
(i) A narrative describing the applicant's contribution and/or repayment remittance practices before and after the period of unpaid or late contributions and/or repayments; and
(ii) Summary documents demonstrating the amount of unpaid or late contributions and/or repayments; and
(3) If restored participant contributions and/or repayments (exclusive of Lost Earnings) exceed $50,000 and were remitted more than
(i) A narrative describing the applicant's contribution and/or repayment remittance practices before and after the period of unpaid or late contributions and/or repayments;
(ii) For participant contributions and/or repayments received from participants, a copy of the accounting records which identify the date and amount of each contribution received; and
(iii) For participant contributions and/or repayments withheld from employees' paychecks, a copy of the payroll documents showing the date and amount of each withholding.
(a)
(b)
(2) For this transaction, the Principal Amount is the amount of delinquent participant contributions retained by the employer.
(c)
(1) For participant contributions received directly from participants, a copy of the accounting records which identify the date and amount of each contribution received;
(2) For participant contributions withheld from employees' paychecks, a copy of the payroll documents showing the date and amount of each withholding;
(3) A statement from a Plan Official identifying the earliest date on which the participant contributions reasonably could have been segregated from the employer's general assets, along with the supporting documentation on which the Plan Official relied in reaching this conclusion;
(4) Copies of the insurance contract or contracts for the group health or other welfare benefits for the plan;
(5) A statement from a Plan Official attesting that there are no instances in which claims have been denied under the plan for nonpayment, nor has there been any lapse in coverage; and
(6) A statement from a Plan Official attesting that any penalties, late fees or other such charges have been paid by the employer and not from participant contributions.
(a)
(b)
(2)
(3) For this transaction, the Principal Amount is the amount of delinquent participant contributions retained by the employer.
(c)
(1) For participant contributions received directly from participants, a copy of the accounting records which identify the date and amount of each contribution received;
(2) For participant contributions withheld from employees' paychecks, a copy of the payroll documents showing the date and amount of each withholding;
(3) A statement from a Plan Official identifying the earliest date on which the participant contributions reasonably could have been segregated from the employer's general assets, along with the supporting documentation on which the Plan Official relied in reaching this conclusion; and
(4) A statement from a Plan Official attesting that there are no instances in which claims have been denied under the plan for nonpayment, nor has there been any lapse in coverage.
(a)
(b)
(c)
(a)
(b)
(2) For purposes of this transaction, each loan payment has a Principal Amount equal to the excess of the loan payment that would have been received if the loan had been made at the fair market interest rate (from the beginning of the loan until the Recovery Date) over the loan payment actually received under the loan terms during such period. Under the VFC Program, the fair market interest rate must be determined by an independent commercial lender.
The plan made to a party in interest a $150,000 mortgage loan, secured by a first Deed of Trust, at a fixed interest rate of 4% per annum. The loan was to be fully amortized over 30 years. The fair market interest rate for comparable loans, at the time this loan was made, was 7% per annum. The party in interest or Plan Official must repay the loan in full plus any applicable prepayment penalties. The party in interest or Plan Official also must pay the difference between what the plan would have received through the Recovery Date had the loan been made at 7% and what, in fact, the plan did receive from the commencement of the loan to the Recovery Date, plus Lost Earnings on that amount as described in Section 5(b).
(c)
(1) A narrative describing the process used to determine the fair market interest rate at the time the loan was made;
(2) A copy of the independent commercial lender's fair market interest rate determination(s); and
(3) A copy of the independent fiduciary's dated, written approval of the fair market interest rate determination(s).
(a)
(b)
(2) For purposes of this transaction, each loan payment has a Principal Amount equal to the excess of the loan payment that would have been received if the loan had been made at the fair market interest rate (from the beginning of the loan until the Recovery Date) over the loan payment actually received under the loan terms during such period. Under the VFC Program, the fair market interest rate must be determined by an independent commercial lender.
(3) From the inception of the loan to the Recovery Date, the amount to be paid to the plan is the Lost Earnings on the series of Principal Amounts, calculated in accordance with Section 5(b).
(4) From the Recovery Date to the maturity date of the loan, the amount to be paid to the plan is the present value of the remaining Principal Amounts, as determined by an independent commercial lender. Instead of calculating the present value, it is acceptable for administrative convenience to pay the sum of the remaining Principal Amounts.
(5) The principles of this paragraph (b) are illustrated in the following example:
The plan made a $150,000 mortgage loan, secured by a first Deed of Trust, at a fixed interest rate of 4% per annum. The loan was to be fully amortized over 30 years. The fair market interest rate for comparable loans, at the time this loan was made, was 7% per annum. The borrower or the Plan Official must pay the excess of what the plan would have received through the Recovery Date had the loan been made at 7% over what, in fact, the plan did receive from the commencement of the loan to the Recovery Date, plus Lost Earnings on that amount as described in Section 5(b). The Plan Official must also pay on the Recovery Date the difference in the value of the remaining payments on the loan between the 7% and the 4% for the duration of the time the plan is owed repayments on the loan.
(c)
(1) A narrative describing the process used to determine the fair market interest rate at the time the loan was made; and
(2) A copy of the independent commercial lender's fair market interest rate determination(s).
(a)
(b)
(2) For purposes of this transaction, each loan payment has a Principal Amount equal to the excess of the loan payment that would have been received if the loan had been made at the fair market interest rate for an unsecured loan (from the beginning of the loan until the Recovery Date) over the loan payment actually received under the loan terms during such period. Under the VFC Program, the fair market interest rate must be determined by an independent commercial lender.
(3) In addition, if the delay in perfecting the loan's security caused a permanent change in the risk characteristics of the loan, the fair market interest rate for the remaining term of the loan must be determined by an independent commercial lender. In that case, the correction amount includes an additional payment to the plan. The amount to be paid to the plan is the present value of the remaining Principal Amounts from the date the loan is fully secured to the maturity date of the loan. Instead of calculating the present value, it is acceptable for administrative convenience to pay the sum of the remaining Principal Amounts.
(4) The principles of this paragraph (b) are illustrated in the following examples:
The plan made a mortgage loan, which was supposed to be secured by a Deed of Trust. The plan's Deed was not
Assume the same facts as in Example 1, except that, as a result of the delay in recording the Deed, the plan ended up in second position behind another lender. The risk to the plan is higher and the interest rate on the note is no longer commensurate with that risk. The loan is treated as a below-market loan (based on the lack of security) for the six months prior to the recording of the Deed of Trust and as a below-market loan (based on secondary status security) from the time the Deed is recorded until the end of the loan.
(c)
(1) A narrative describing the process used to determine the fair market interest rate for the period that the loan was unsecured and, if applicable, for the remaining term of the loan; and
(2) A copy of the independent commercial lender's fair market interest rate determination(s).
(a)
(b)
(2) The principles of this paragraph (b) are illustrated in the following example:
On January 1, 2004, Participant A receives a $15,000 loan pursuant to the loan provisions of Plan X, which incorporate the requirements of section 72(p) of the Code. Participant A is an employee of Company Y, the plan sponsor. Participant A is not a party in interest with respect to Plan X for any reason other than his employment with Company Y. The terms of the loan include a five-year repayment in equal monthly installments of principal and interest at a then current market interest rate of 4.625%. Amortized monthly payments for Participant A are determined to be $280. However, in accordance with Plan X limitations on the amount of participant loans and Participant A's account balance as of January 1, 2004, Participant A should not have received a loan in excess of $10,000. The loan otherwise complies with Plan X's loan provisions.
In late 2004, a Plan Official discovers that the amount of Participant A's loan exceeded applicable plan limitations. On January 1, 2005, the Recovery Date, Participant A's outstanding loan balance is $12,270. Participant A repays $5,000 to Plan X, the amount by which his loan exceeded applicable plan limitations on January 1, 2004. Plan Officials reform Participant A's loan on January 1, 2005 based on the outstanding principal balance of $7,270, to be paid back in equal monthly installments of principal and interest at the original loan rate of 4.625%. Appropriate adjustments are made to the monthly repayment amount, which will be $166 over the 4-year period remaining on the loan's original 5-year term. The reformed loan otherwise will comply with the terms of the original loan.
(c)
(1) For each plan loan originated in violation of applicable plan limits, the date, amount, duration, interest rate and repayment schedule applicable to each plan loan and the amount of each participant's nonforfeitable accrued benefit on such date;
(2) Date and amount of excess loan repaid by each participant prior to reformulation;
(3) Date, amount and repayment schedule of each reformulated plan loan being maintained as an ongoing plan loan;
(4) Date and amount of payments made by the participant with respect to the original plan loan;
(5) A copy of the plan's loan provisions; and
(6) An explanation of any administrative practices or procedures with respect to plan loans and any changes to such practices or procedures designed to prevent this type of Breach from recurring.
(a)
(b)
(2) The principles of this paragraph (b) are illustrated in the following example:
On January 1, 2004, Participant A receives a general purpose $10,000 loan pursuant to the loan provisions of Plan X, which incorporate the requirements of section 72(p) of the Code. Participant A is an employee of Company Y, the plan sponsor. Participant A is not a party in interest with respect to Plan X for any reason other than his employment with Company Y. The terms of the loan include a ten-year repayment in equal monthly installments of principal and interest at a then current market interest rate of 4.75%. Amortized monthly payments for Participant A are determined to be $105. However, in accordance with Plan X limitations on the repayment term for general purpose participant loans, Participant A should not have received a loan with a duration longer than five years. The loan
In late 2004, a Plan Official discovers that the duration of Participant A's loan exceeded applicable plan limitations. Plan Officials reform Participant A's loan on January 1, 2005, the date of correction, based on the outstanding principal balance of $9,200, to be paid back in equal monthly installments of principal and interest at the original loan rate of 4.75%. Appropriate adjustments are made to the monthly repayment amount, which will be $211 over the remaining four-year repayment term that begins on the date of correction. The reformed loan otherwise will comply with the terms of the original loan.
(c)
(1) For each plan loan originated with a duration exceeding applicable plan limits, the date, amount, duration, interest rate, and repayment schedule applicable to each plan loan;
(2) Date, amount, duration, interest rate, and repayment schedule of each reformulated plan loan being maintained as an ongoing plan loan from the date of correction;
(3) Date and amount of payments made by the participant with respect to the original plan loan;
(4) A copy of the plan's loan provisions; and
(5) An explanation of any administrative practices or procedures with respect to plan loans and any changes to such practices or procedures designed to prevent this type of Breach from recurring.
(a)
(b)
(2) For this transaction, the Principal Amount is the plan's original purchase price.
(3) The principles of this paragraph (b) are illustrated in the following example:
A plan purchased from the plan sponsor a parcel of real property. The plan does not lease the property to any person. Instead, the plan uses the property as an office. The Plan Official obtains from a qualified, independent appraiser an appraisal of the property reflecting the FMV of the property at the time of purchase. The appraiser values the property at $100,000, although the plan paid the plan sponsor $120,000 for the property. As of the Recovery Date, the property is valued at $110,000. To correct the transaction, the plan sponsor repurchases the property for $120,000 with no reduction for the costs of sale and reimburses the plan for the initial costs of sale. The plan sponsor also must pay the plan the greater of the plan's Lost Earnings or the sponsor's profits on this amount. This example assumes that the plan sponsor did not make a profit on the $120,000 proceeds from the original sale of the property to the plan.
(c)
(1) Documentation of the plan's purchase of the real property, including the date of the purchase, the plan's purchase price, and the identity of the seller;
(2) A narrative describing the relationship between the original seller of the asset and the plan; and
(3) The qualified, independent appraiser's report addressing the FMV of the asset purchased by the plan, both at the time of the original purchase and at the recovery date.
(a)
(b)
(2) For this transaction, the Principal Amount is the amount by which the FMV of the asset (at the time of the original sale) exceeds the sale price.
(3) The principles of this paragraph (b) are illustrated in the following example:
A plan sold a parcel of unimproved real property to the plan sponsor. The sponsor did not make any profit on the use of the property. The Plan Official obtains from a qualified, independent appraiser an appraisal of the property reflecting the FMV of the property as of the date of sale. The appraiser valued the property at $130,000, although the plan sold the property to the plan sponsor for $120,000. However, the plan fiduciaries have reason to believe that the property will substantially increase IN VALUE in the near future based on the anticipated building of a shopping mall adjacent to the property in question and, as of the Recovery Date, the appraiser values the property at $140,000. An independent fiduciary determines that the property is a prudent investment for the plan, and will not result in any liquidity or diversification problems. The plan corrects by repurchasing the property at the original sale price, with the party in interest assuming the costs of the reversal of the sale transaction.
(c)
(1) Documentation of the plan's sale of the asset, including the date of the sale, the sales price, and the identity of the original purchaser;
(2) A narrative describing the relationship of the purchaser to the asset and the relationship of the purchaser to the plan;
(3) The qualified, independent appraiser's report addressing the FMV of the property at the time of the sale from the plan and as of the Recovery Date; and
(4) The independent fiduciary's report that the property is a prudent investment for the plan.
(a)
(b)
(2) For purposes of this transaction, the Principal Amount is the plan's original purchase price.
(3) If the plan has not been receiving rent at FMV, as determined by a qualified, independent appraisal, the sale price of the real property should not be based on the historic below-market rent that was paid to the plan.
(4) In addition to the correction amount in subparagraph (1), if the plan was not receiving rent at FMV, as determined by a qualified, independent appraiser, the Principal Amount also includes the difference between the rent actually paid and the rent that should have been paid at FMV. The plan sponsor must pay to the plan this additional Principal Amount, plus the greater of (i) Lost Earnings or (ii) Restoration of Profits resulting from the plan sponsor's use of the Principal Amount, as described in Section 5(b).
(5) The principles of this paragraph (b) are illustrated in the following example:
The plan purchased at FMV from the plan sponsor an office building that served as the sponsor's primary business site. Simultaneously, the plan sponsor leased the building from the plan at below the market rental rate. The Plan Official obtains from a qualified, independent appraiser an appraisal of the property reflecting the FMV of the property and rent. To correct the transaction, the plan sponsor purchases the property from the plan at the higher of the appraised value at the time of the resale or the original sales price and also pays the Lost Earnings. Because the rent paid to the plan was below the market rate, the sponsor must also make up the difference between the rent paid under the terms of the lease and the amount that should have been paid, plus Lost Earnings on this amount, as described in Section 5(b).
(c)
(1) Documentation of the plan's purchase of the real property, including the date of the purchase, the plan's purchase price, and the identity of the original seller;
(2) Documentation of the plan's sale of the asset, including the date of sale, the sales price, and the identity of the purchaser;
(3) A narrative describing the relationship of the original seller to the plan and the relationship of the purchaser to the plan;
(4) A copy of the lease;
(5) Documentation of the date and amount of each lease payment received by the plan; and
(6) The qualified, independent appraiser's report addressing both the FMV of the property at the time of the original sale and at the Recovery Date, and the FMV of the lease payments.
(a)
(b)
(1) The principles of this paragraph (b) are illustrated in the following example:
A plan bought unimproved land without obtaining a qualified, independent appraisal. Upon discovering that the purchase price was $10,000 more than the appraised FMV, the Plan Official pays the plan the Principal Amount of $10,000, plus Lost Earnings as described in Section 5(b).
(c)
(1) Documentation of the plan's original purchase of the asset, including the date of the purchase, the purchase price, and the identity of the seller;
(2) A narrative describing the relationship of the seller to the plan; and
(3) A copy of the qualified, independent appraiser's report addressing the FMV at the time of the plan's purchase.
(a)
(b)
(1) The principles of this paragraph (b) are illustrated in the following example:
A plan sold unimproved land without taking steps to ensure that the plan received FMV. Upon discovering that the sale price was $10,000 less than the FMV, the Plan Official pays the plan the Principal Amount of $10,000 plus Lost Earnings as described in Section 5(b).
(c)
(1) Documentation of the plan's original sale of the asset, including the date of the sale, the sale price, and the identity of the buyer;
(2) A narrative describing the relationship of the buyer to the plan; and
(3) A copy of the qualified, independent appraiser's report addressing the FMV at the time of the plan's sale.
(a)
(b)
(2) For this transaction, the Principal Amount is the plan's original purchase price.
(3) The principles of this paragraph (b) are illustrated in the following examples:
A plan purchases undeveloped real property from a party in interest with respect to the plan for $60,000 in June 1999. In April 2004, Plan Officials determine that the property is an illiquid asset. A qualified independent, appraiser appraises the property at a current FMV of $20,000. The plan sponsor pays the plan the Principal Amount of $60,000 plus Lost Earnings as described in Section 5(b), and Plan Officials transfer the property from the plan to the plan sponsor. The Plan Officials also comply with the applicable terms of the related exemption.
A plan purchases a limited partnership interest for $60,000 in June 1999 from an unrelated party after plan fiduciaries properly fulfill their fiduciary duties with respect to the purchase. In April 2004, Plan Officials determine that the interest is an illiquid asset because the interest has failed to generate a reasonable rate of return. A qualified, independent appraiser appraises the interest at a current FMV of $80,000. The plan sponsor pays the plan the FMV of $80,000 without a reduction for the costs of the sale, which is greater than the Principal Amount plus Lost Earnings, and Plan Officials transfer the interest from the plan to the plan sponsor. The Plan Officials also comply with the applicable terms of the related exemption.
(c)
(1) Documentation of the plan's original purchase of the asset, including the date of the purchase, the plan's purchase price, the identity of the original seller, and a description of the relationship, if any, between the original seller and the plan;
(2) The qualified, independent appraiser's report addressing the FMV of the asset purchased by the plan at the recovery date;
(3) A narrative describing the plan's efforts to sell the asset to persons who are not parties in interest with respect to the plan and any documentation of such efforts to sell the asset;
(4) A statement from a Plan Official attesting that: (i) The asset failed to appreciate, failed to provide a reasonable rate of return, or caused a loss to the plan; (ii) the sale of the asset is in the best interest of the plan; (iii) the asset is an illiquid asset; and (iv) the plan made reasonable efforts to sell the asset to persons who are not parties in interest with respect to the plan without success; and
(5) In the case of an illiquid asset that is a parcel of real estate, a statement from a Plan Official attesting that no party in interest owns real estate that is contiguous to the plan's parcel of real estate on the Recovery Date.
(a)
(b)
(2) To correct the valuation defect, a Plan Official must determine the FMV of the improperly valued asset per Section 5(a) for each year in which the asset was valued improperly.
(3) Once the FMV has been determined, the participant account balances for each year must be adjusted accordingly.
(4) The Annual Report Forms 5500 must be amended and refiled for (i) the last three plan years or (ii) all plan years in which the value of the asset was reported improperly, whichever is less.
(5) The Plan Official or plan administrator must determine who received distributions from the plan during the time the asset was valued improperly. For distributions that were too low, the amount of the underpayment is treated as a Principal Amount for each individual who received a distribution. The Principal Amount and Lost Earnings must be paid to the affected individuals. For distributions that were too high, the total of the overpayments constitutes the Principal Amount for the plan. The Principal Amount plus the Lost Earnings, as described in Section 5(b), must be restored to the plan or to any participants who received distributions that were too low.
(6) The principles of this paragraph (b) are illustrated in the following examples:
On December 31, 1995, a profit sharing plan purchased a 20-acre parcel of real property for $500,000, which represented a portion of the plan's assets. The plan has carried the property on its books at cost, rather than at FMV. One participant left the company on January 1, 1997, and received a distribution, which included her portion of the value of the property. The separated participant's account balance represented 2% of the plan's assets. As part of correction for the VFC Program, a qualified, independent appraiser has determined the FMV of the property for 1996, 1997, and 1998. The FMV as of December 31, 1996, was $400,000. Therefore, this participant was overpaid by $2,000 (($500,000-$400,000) multiplied by 2%). The Plan Officials corrected the transaction by paying to the plan the $2,000 Principal Amount plus Lost Earnings as described in Section 5(b).
The plan administrator also filed an amended Form 5500 for plan years 1996 and 1997, to reflect the proper values. The plan administrator will include the correct asset valuation in the 1998 Form 5500 when that form is filed.
Assume the same facts as in Example 1, except that the property had appreciated in value to $600,000 as of December 31, 1996. The separated participant would have been underpaid by $2,000. The correction consists of locating the participant and distributing to her the $2,000 Principal Amount plus Lost Earnings as described in Section 5(b), as well as filing the amended Forms 5500.
(c)
(1) A copy of the qualified, independent appraiser's report for each plan year in which the asset was revalued;
(2) A written statement confirming the date that amended Annual Report Forms 5500 with correct valuation data were filed;
(3) If losses are restored to the plan, proof of payment to the plan and copies of the adjusted participant account balances; and
(4) If supplemental distributions are made, proof of payment to the individuals entitled to receive the supplemental distributions.
(a)
(b)
(2) The Principal Amount is the difference between (a) the amount actually paid by the plan to the service provider during the six years prior to the discontinuation of the payment of the excessive, duplicative, or unnecessary compensation and (b) the reasonable market value of the non-duplicative services.
(3) The principles of this paragraph (b) are illustrated in the following example:
(c)
(1) A written estimate of the reasonable market value of the services;
(2) The estimator's qualifications; and
(3) The cost of the services at issue during the period that such services were provided to the plan.
(a)
(b)
(2) The Principal Amount is the difference between (a) the amount actually paid by the plan during the six years prior to the discontinuation of the payments to the fiduciary and (b) the amount that represents reimbursements of expenses properly and actually incurred by the fiduciary.
(3) The principles of this paragraph (b) are illustrated in the following example:
A union sponsored a health plan funded through contributions by employers. The union president receives $50,000 per year from the union in compensation for his services as union president. He is appointed as a trustee of the health plan while retaining his position as union president. In exchange for acting as plan trustee, the union president is paid a salary of $200 per week by the plan while still receiving the $50,000 salary from the union. Since $50,000 is full-time pay, the plan's weekly salary payments are improper. To correct the transaction, the plan must be paid the Principal Amount, which is the $200 weekly salary amount for each week that the salary was paid, plus the higher of Lost Earnings or Restoration of Profits, as described in Section 5(b).
(c)
(1) Copies of the plan's accounting records which show the date and amount of compensation paid by the plan to the identified fiduciary; and
(2) If any of the amounts paid by the plan to the fiduciary represent reimbursements of expenses properly and actually incurred by the fiduciary, include copies of the plan records that indicate the date, amount, and character of these payments.
Federal Deposit Insurance Corporation (FDIC).
Final rule.
The FDIC is amending its international banking regulations in subpart J of part 303 and revising subparts A and B of part 347. The amendments reorganize, clarify, and revise subparts A and B of part 347, and address various issues raised as part of the FDIC's ongoing effort under the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (12 U.S.C. 3311). Included in the revisions are amendments that address relocation of insured U.S. branches of foreign banks within and outside the state where such branches are presently located, adoption of a risk-based asset pledge requirement for insured U.S. branches of foreign banks, and information and examination requirements for foreign banks that own branches or depository institution subsidiaries seeking FDIC deposit insurance. The FDIC has also decided to maintain its existing position concerning the availability of FDIC deposit insurance for wholesale U.S. branches of foreign banks.
These revisions are effective July 1, 2005.
John Di Clemente, Chief, International Section, Division of Supervision and Consumer Protection, (202) 898-3540 or
On July 19, 2004, the FDIC issued a notice of proposed rulemaking (“NPR”) in the
The proposed amendments were intended to accomplish various goals. These included implementation of the “plain language” requirement contained in section 722 of the Gramm-Leach-Bliley Act of 1999 (12 U.S.C. 4809); addressing certain regulatory burden issues raised in public comments as part of the FDIC's ongoing burden reduction effort under the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA)(12 U.S.C. 3311); maintaining parity with Regulation K, which was amended by the Board of Governors of the Federal Reserve System (“FRB”) in October, 2001; and updating and enhancing the FDIC's supervisory processes by revising existing rules and proposing certain new rules. In addition, although no amendments were proposed regarding the topics, the FDIC requested comments on whether deposits in wholesale U.S. branches of foreign banks should be insured by the FDIC and whether the accounting regulations contained in subpart C of part 347 should be revised.
The comment period closed on September 17, 2004. Comments were received from the American Bankers Association (“ABA”), the Institute for International Bankers (“IIB”), and the Conference of State Bank Supervisors (“CSBS”) regarding issues addressed in the NPR. In addition, at the IIB's request, FDIC staff met with representatives of the IIB and representatives of its constituent foreign banks regarding the IIB's EGRPRA suggestions and issues addressed in its comment letter.
A discussion of the comments and changes to the proposal that are being adopted in this final rule are presented below.
Subpart J of part 303 contains the FDIC application procedures that implement the international banking regulations in part 347, subparts A and B. Although the NPR contained several amendments to the subpart J regulations, most of them consisted of technical amendments because of the substantial restructuring being proposed for the regulations in part 347. There were no comments on those amendments and the FDIC is adopting them as proposed.
In addition to the technical amendments, the FDIC proposed to amend section 303.184, which addresses moving an insured branch of a foreign bank (“grandfathered branch”),
In addition to the amendments proposed in subpart J of part 303, the FDIC also proposed revisions to sections 325.103 and 327.4, regarding capital maintenance and the annual assessment rate, respectively, for insured U.S. branches of foreign banks. The amendments were proposed to conform those sections with proposed amendments to the FDIC's asset pledge and asset maintenance requirements contained in subpart B of part 347. Because the FDIC has decided to maintain the existing quarterly calculation methodology for asset maintenance in the final rule, for the reasons discussed subsequently in connection with section 347.210, the reference to the “insured branch's daily third-party liabilities” has been eliminated in the final rule.
Subpart A of part 347 primarily addresses branching, investments, and permissible activities of state nonmember banks in foreign countries. The FDIC proposed various amendments in the NPR that reorganized the existing sections in the subpart and clarified their coverage. For example, the FDIC proposed to divide particularly complex sections, such as existing section 347.104 into sections 347.104 through 347.110, which are less complex sections but accomplish a similar result. The FDIC also proposed to move and consolidate existing sections based on the subject matter addressed to make the requirements easier to locate and understand. For example, existing sections 347.103, addressing foreign branch powers and FDIC consent requirements, and 347.108, addressing FDIC consent requirements for foreign investments, were made sections 347.115 (permissible activities for foreign branches), and 347.117 (general consent for foreign branches and investments), 347.118 (expedited processing for foreign branches and investments, and 347.119 (specific consent). The discussion that follows is provided to explain a few of the more significant amendments to the subpart.
The FDIC proposed to revise existing sections 347.103 and 347.104 in the NPR to better address the interplay between the FDIC's part 362 and part 347. This revision was accomplished in two ways. First we separated the substance of existing section 347.104(f), dealing with direct and indirect investments in foreign organizations, into section 347.104 in the proposed rule.
The ability of insured state nonmember banks to invest in other types of foreign organizations, however, raises issues under section 24 of the FDI Act (12 U.S.C. 1831a) and part 362 because national banks are unable to invest directly in nonbank foreign organizations. Section 24 prohibits an insured state nonmember bank from acquiring an equity investment that a national bank is not permitted to acquire. Such an investment may be made under section 24, subject to FDIC approval, however, if the investment is made through a majority-owned subsidiary of the bank. It may also be made if a company becomes majority-owned by the bank as a result of the investment and the “as principal” activities of the company are ones in which a subsidiary of a national bank could engage. Ownership of more than 50 percent of the equity in a nonbank foreign organization makes that organization a majority-owned subsidiary and, thus, no section 24 analysis is required because such a subsidiary is authorized only to engage in the same activities that the FRB has authorized for subsidiaries of member banks (and thus national banks) under Regulation K. In addition, while it is unnecessary for insured state nonmember bank investments of 50 percent or less of the equity of a nonbank foreign organization to be held through an intermediate foreign bank subsidiary or Edge subsidiary as required under Regulation K, those investments are required to be held through some form of U.S. or foreign majority-owned subsidiary in order to comply with the requirements of section 24 and part 362.
The ABA commented on the proposed amendment to section 347.115, including another FDIC proposal adopting the same definition of “investment grade” that had been adopted by the FRB and the OCC. In its comment, the ABA noted that the adoption of the same approach to “investment grade” was a substantive improvement, which it supported. It also expressed support for the addition of section 347.115(h), discussed above.
The FDIC also proposed to amend its authorization for “general consent” in two ways. The first way was to allow insured state nonmember banks to branch into a foreign country under general consent in circumstances covered by proposed section 347.117(a)(1)(ii) or (iii). This change would allow an eligible state nonmember bank to establish additional branches in a country in which the bank's holding company operates a foreign bank subsidiary, or in which an affiliated bank or Edge or Agreement corporation operates one or more foreign branches or foreign bank subsidiaries and allow for an after-the-fact notification to the FDIC in those circumstances, rather than requiring prior approval under expedited processing, as is presently required under section 347.103(c)(1). The second way was to grant general consent to invest in a foreign organization, under proposed section 347.117(b)(2), when at least one insured state nonmember bank operates a foreign branch in the relevant foreign country where the organization will be located because of the FDIC's familiarity with the banking laws and practices of that country. The ABA commented on this amendment and expressed support for the proposed change in general consent for foreign branches.
Although the FDIC received no comments on the proposed revision for foreign investments, an additional clarification to proposed section 347.117(b)(2) is included in this final rule. As indicated in the discussion contained in the NPR, when the FDIC amended its foreign banking regulations in 1998, it declined to adopt a suggestion that the FDIC grant general consent to invest in a foreign organization when at least one insured state nonmember bank operates a foreign branch in the relevant foreign country. This was due to concerns that “nameplate” branches being operated in foreign countries might fall within the scope of the authorization. In the discussion of the proposed amendment in the NPR, the FDIC indicated that it believed most nameplate branches would be operated in jurisdictions where authority to invest in foreign organizations by general consent would be inapplicable under section 347.119(a). Although the FDIC believes the discussion in the NPR was correct, it is concerned that the standard may be somewhat imprecise. Therefore, the text contained in section 347.117(b)(2) has been revised in the final rule to clearly indicate that the existence of a “shell branch” (a term that the FDIC intends to be synonymous with the term “nameplate branch”) in a foreign country will not provide a basis for investment by general consent under section 347.117(b).
Finally, the proposal contained a new section 347.122, which was intended to enhance the FDIC's existing supervisory authority. The section recognizes that the FDIC may, under section 18(d)(2) and 18(l) of the FDI Act, condition the authority granted under subpart A as it considers appropriate and provide for termination of activities or divestiture of investments permitted under the subpart, after giving the bank notice and a reasonable opportunity to be heard, if a bank is unable or fails to comply with the requirements of the subpart or any conditions imposed by the FDIC regarding transactions under the subpart. The only comment on the section was submitted by the ABA, which expressed no opposition to the new section.
After considering the proposed amendments contained in the NPR and the comments submitted thereon, except as otherwise stated above, the FDIC is adopting all of the amendments to subpart A of part 347 in this final rule as they were proposed.
The existing rules in part 347, subpart B primarily implement provisions of the FDI Act and International Banking Act concerning insured and noninsured U.S. branches of foreign banks. The FDIC proposed reorganizing the subpart by grouping the existing sections that were applicable to insured State and Federal branches at the beginning of the subpart, followed by the sections applicable to only State branches. In addition to several minor revisions to the existing sections, the FDIC also proposed more substantive amendments. These included revising its existing rules to update its foreign examination and information rule and applying them to U.S. banking subsidiaries of foreign banks, addressing how a grandfathered branch could be transferred to a new foreign bank owner and retain the branch's grandfathered status, adopting a risk-based approach for its asset pledge rule, and revising its asset maintenance rule to compute asset maintenance requirements based on a daily calculation of the third-party assets and liabilities. Finally, the FDIC proposed a new rule to facilitate cross-border supervision of insured U.S. branches of foreign banks and insured U.S. bank subsidiaries by providing for the sharing of supervisory information between the FDIC and foreign bank regulatory or supervisory authorities and addressing the confidentiality of such information. These more substantive amendments are discussed in greater detail below.
Section 347.208 of the FDIC's existing rules addresses foreign bank agreements with the FDIC to be examined and provide information. The regulation implements section 10(b) of the FDI Act (12 U.S.C. 1820(b)) and was initially issued in 1979. Although the regulation addresses foreign banks applying for deposit insurance for U.S. branches, it does not address deposit insurance applications of U.S. depository institution subsidiaries of foreign banks.
To update the rule and enhance the FDIC's supervisory authority, the FDIC proposed to redesignate the rule as section 347.204 and substantially amend it to make it more useful. As envisioned in the proposal, the amended rule would have addressed several issues. It would have made the rule applicable to U.S. depository institution subsidiaries, as well as U.S. branches, of a foreign bank seeking deposit insurance from the FDIC. It also would have required the foreign bank to provide the FDIC with a written commitment (including the foreign bank's consent to U.S. court jurisdiction and designation of agent for service of process, acceptable to the FDIC) to:
• Permit examination of the foreign bank and affiliates located outside the U.S.;
• Provide information regarding the foreign bank and affiliates located outside the U.S.; and
• Permit examination and provide information regarding the offices and affiliates of the foreign bank that are located in the U.S.
In addition, the proposal would have allowed the FDIC to waive the foreign examination provision if the FRB had determined that the foreign bank was subject to comprehensive consolidated supervision (“CCS”). It also would have allowed for the FDIC, in its discretion and subject to the requirements specified in the regulation, to waive some or all of the commitment requirements imposed by the section in lieu of requiring its own separate commitment from the foreign bank.
There were two comments on proposed section 347.204. The ABA expressed support for the proposed amendments to the section. The IIB expressed concerns, however, about what it viewed as exertion of “extraterritorial” examination authority over non-U.S. offices and affiliates of foreign banks. The IIB also asserted that the proposal would reverse the FDIC's longstanding position, dating back to 1979, when the original rule was adopted, when the FDIC recognized that despite its broad statutory authority to conduct such examinations, home country laws typically would prohibit the FDIC from doing so. Therefore, the IIB observed, the FDIC adopted a compromise under which it asserted examination authority only over U.S. branches and affiliates and required an agreement to provide information concerning operations of non-U.S. offices and affiliates. The IIB also felt that the proposed foreign examination provision was largely unnecessary because the proposed rule contained waiver authority for foreign banks that had been determined to be subject to CCS. It noted that section 3 of the Bank Holding Company Act (12 U.S.C. 1842) required a finding of comprehensive consolidated supervision by the FRB before a foreign bank could acquire or establish a U.S. commercial bank subsidiary and that the acquisition by a foreign bank of control of a savings
The FDIC has reviewed and considered the comments on proposed section 347.204, as well as the information and an examination requirement contained in existing section 347.208, and has decided to make several revisions to section 347.204 in the final rule.
Although the IIB did not specifically reference the 1979 statement mentioned in its comment, the FDIC believes that the reference was to a comment contained in the preamble to the proposed rule for the FDIC's initial foreign banking regulations. In that notice, the FDIC observed:
The FDIC is aware that most foreign banks would be prohibited, or at least restricted, by law or policy of the country of the bank's domicile from providing such a commitment. Were the FDIC to require a commitment allowing the FDIC to conduct a full examination of the bank, it is probable that no foreign bank could operate an insured branch. This result clearly is not intended. Thus, the FDIC proposes that a foreign bank agree to provide the FDIC with information regarding the affairs of the bank and its affiliates which are located outside the United States. As to activities within the United States, the bank shall agree to allow the FDIC to examine the affairs of the bank and its affiliates. 44 FR 23869, 23871 (April 23, 1979).
The FDIC believes that this conservative approach may have been prudent in the context of foreign banks seeking deposit insurance for U.S. branches in the late 1970s but that the approach has become somewhat outdated and the rule should be more reflective of the supervisory structure that is currently in existence. In this regard, it is noted that the underlying statutory provision in the FDI Act and the initial regulation preceded the failure of the Bank of Credit and Commerce International (“BCCI”) in the early 1990s, which had an impact on certain insured depository institutions in the United States that had undisclosed relationships with BCCI. The underlying statutory provision and initial regulation also preceded the enactment of statutory amendments to the IBA, Bank Holding Company Act, and Home Owners Loan Act, as part of the Foreign Bank Supervision and Enforcement Act of 1991,
The FDIC has also revised the final rule to eliminate the waiver provisions contained in paragraph (b) of the proposal. The first waiver provision concerned the foreign examination commitment, which is no longer addressed in paragraph (a) of the final rule. In addition, the other waiver provision, regarding waivers for commitments provided to other Federal banking agencies, has been deleted. Although the latter provision was intended to avoid the appearance of duplication, the FDIC is concerned that such waivers may create the potential for uncertainty regarding the FDIC's authority under the commitments. Thus the FDIC believes the potential enforcement difficulties attendant to such waivers outweigh the potential benefits of such waiver authority.
The FDIC also has revised the consent to jurisdiction and designation of agent provisions in the final rule to clarify those provisions by eliminating the “court” and “process” references. The FDIC presently requires that foreign owners of insured depository institutions, including foreign banks, provide consents to personal jurisdiction that are acceptable to the FDIC; however, the consents are not limited merely to court proceedings.
Section 347.204(b)(3) of the proposal has also been made paragraph (b) in the final rule and revised. Because the FDIC believes that an acceptable consent to U.S. jurisdiction and designation of agent for service are essential components needed to obtain binding commitments from the foreign bank, the final rule clarifies that the consent to jurisdiction and designation of agent for service (and any limitations on the FDIC's ability to utilize them) will be considered together with the commitments provided by the foreign bank. Additionally, as revised by the final rule, the section recognizes that the FDIC also has discretion to consider any additional commitments or assurances by the foreign bank, including that it will cooperate and assist the FDIC, including, without limitation, by seeking to obtain waivers and exemptions from applicable confidentiality or secrecy restrictions or requirements to enable the foreign bank or its affiliates to make such information available to the FDIC.
Therefore, the FDIC is adopting section 347.204, as revised in this final rule, for application to deposit insurance applications of U.S. branches and depository institution subsidiaries of foreign banks.
Another issue addressed in the proposal was an amendment contained in proposed section 347.206(d), concerning the transferability of grandfathered branches to new foreign banks. As indicated in the proposal, section 347.206 of the proposal is largely derived from existing section 347.204(a)-(c) and implements section 6(d) of the IBA (12 U.S.C. 3104(d)).
As part of the EGRPRA process the IIB requested that the FDIC adopt an interpretation of section 6(d) that would
Having considered these points in the proposal, the FDIC observed that it had narrowly construed the exception in the past and that a broad reading of the grandfather exception requested would be at odds with the distinct preference Congress stated in section 6(d) of the IBA of making foreign banks desiring to engage in
The FDIC recognized, however, that its existing regulations did not address this issue and that there may be other situations, such as certain merger and acquisition transactions, that are not designed or motivated by the desire to obtain access to the domestic retail deposit market and avoid compliance with the subsidiary requirement in section 6(d) of the IBA, where the grandfathered status of an insured branch should remain intact. Therefore, the FDIC proposed to address the issue by providing in section 347.206(d) of the proposal that in certain circumstances, such as certain merger and acquisition transactions, which are not designed or motivated by the desire to obtain access to the domestic retail deposit market and avoid compliance with the subsidiary requirement in section 6(d) of the IBA, the grandfathered status of an insured branch should remain intact following the transaction.
The FDIC received comments from the ABA and IIB on the proposed amendment. The ABA indicated that it did not oppose the amendment, noting that it appeared to state explicitly what has been considered to be the law implicitly. The IIB, however, reiterated its previously expressed view that there was adequate legal authority for the FDIC to permit, rather than prohibit, the transferability of an insured branch to another foreign bank without the loss of its grandfathered status. It also suggested that permitting the grandfathered status of the remaining 12 FDIC-insured branches to survive a transfer of the branch would not be fundamentally inconsistent with the 1991 Congressional determination that foreign banks seeking to engage in
As indicated earlier, the IIB's legal and policy arguments on the transferability issue were submitted prior to the issuance of the proposal and were considered and discussed in the proposal. Although the FDIC recognizes that it might be possible to make legal and policy arguments supporting the IIB's proposed broad reading of the grandfather exception, the FDIC continues to believe that the exception should be construed narrowly, since it is contrary to Congress' general direction that foreign banks only engage in retail deposit taking after December 19, 1991, through banking subsidiaries with deposit insurance and that the statute not be construed to provide foreign banks with a competitive advantage over domestic banks.
The IIB also noted that requiring a specific proper motivation in a merger and acquisition might even call into question the survival of grandfathered status following a change in control of the foreign parent bank. It suggested, regardless of the FDIC's treatment of the broader transferability issue, that the FDIC clarify that changes in control of the foreign parent bank will not terminate the grandfathered status of existing insured branches.
The FDIC believes that it may be problematic to make a general statement such as that requested by the IIB in the context of a rulemaking proceeding. The FDIC believes that a change in ownership of a foreign bank that owns an insured branch may affect the FDIC's interest in the insured institution and that the FDIC should have an opportunity to evaluate the transaction before it is finalized. Therefore, since the universe of grandfathered insured branches of foreign banks is very limited, the FDIC believes that it is more appropriate for a foreign bank considering this type of transaction to discuss its planned structure with FDIC staff to evaluate whether the grandfathered status of the branch will remain intact following the proposed change in control of the existing foreign bank owner.
Therefore, for the reasons previously stated, the FDIC is adopting section 347.206, as proposed, in the final rule.
The FDIC also proposed to add a new section 347.207 to the subpart to facilitate cross-border supervision of insured U.S. branches and banking subsidiaries of foreign banks by providing for the sharing of supervisory information between the FDIC and foreign bank regulatory or supervisory authorities. As indicated in the proposal, the section was patterned after section 15 of the IBA (12 U.S.C. 3109) and 12 CFR 211.27. It also addressed the confidentiality of such information, based upon the FDIC's interpretation of section 8(v) of the FDI Act (12 U.S.C. 1818(v)), by providing that the disclosure or transfer of such information to a foreign bank regulatory or supervisory authority will not waive any privilege applicable to such information. The ABA's comment indicated that it supported the addition of the provision and it is being adopted in the final rule without further amendment.
In amendments contained in section 347.209 of the proposal, the FDIC proposed to revise the 5 percent asset pledge requirement, contained in existing section 347.210, to make it
The FDIC also proposed amendments to the “eligible collateral” portion of the rule to specify that “negotiable” certificates of deposit (“CDs”) with waivers of offset from their issuers, but not non-negotiable CDs with waivers of offset from their issuers, and U.S. Treasury bills would be considered eligible collateral under the rule.
All of the commenters discussed the proposed amendments to this rule. The CSBS observed that the asset pledge and asset maintenance requirements were extremely important and valuable supervisory tools. It also observed that, while the role of the state asset pledge and asset maintenance requirements is paramount for the protection of creditors of uninsured branches, in the unique situation where retail deposits are insured by the FDIC, the major objective is the protection of depositors and that certain states had taken the initiative to avoid the imposition of double asset pledge requirements by exempting FDIC insured branches from state asset pledge requirements. Therefore, given the unique situation posed by insured branches of foreign banks and lack of effect on state prerogatives, the CSBS indicated that it did not object to the proposed amendments to the FDIC asset pledge and maintenance rules.
The ABA expressed general support for the amendments but suggested that additional financial instruments be added to the eligible collateral list in the rule. The ABA observed that the list of assets that foreign banks may pledge under the existing rule includes certain negotiable CDs and bankers acceptances issued by state and national banks, but does not include the same types of instruments issued by state and federal savings associations. The ABA also observed that eligible collateral, under the existing rule, includes notes issued by banks and bank holding companies but not savings associations and thrift holding companies. The ABA believed that there was no reason to distinguish between banks, savings associations, and their respective corporate parents in this manner, since financial instruments provided by these other issuers also would provide the same protection from the FDIC.
The IIB supported adoption of a risk-based asset pledge requirement but believed the proposed two percent minimum pledge amount should be eliminated in favor of either (i) a completely risk-based requirement or (ii) a smaller minimum. The IIB also disagreed with the FDIC's proposal to amend the eligible collateral requirement to require negotiable CDs with waivers of offset because of the practical burdens associated with requiring grandfathered branches to substitute negotiable CDs with waivers of offset for non-negotiable CDs with waivers of offset. It also observed that non-negotiable CDs with waivers of offset had been considered acceptable collateral for over 20 years.
The FDIC has considered the comments and is making certain amendments to section 347.209 in the final rule. The FDIC asset pledge requirement was established to provide the FDIC deposit insurance funds protection against losses on insured deposit claims by depositors of U.S. branches of foreign banks. While the FDIC is aware that the level of assets required to be pledged to the FDIC by a foreign bank may have an economic impact on the foreign bank, the FDIC's paramount interests are maintaining and protecting the resources of the deposit insurance funds that it administers and honoring its deposit insurance obligations to depositors of insured U.S. branches of foreign banks. Inherent in the asset pledge requirement, regardless of asset maintenance requirements imposed on U.S. branches, is the possibility that those U.S. branch assets may not be sufficient to pay the claims of domestic creditors, including the FDIC. Therefore, the FDIC believes that the proposed risk-based approach, including the two percent minimum requirement, represents the best compromise between the interest of the FDIC in assuring that the deposit insurance funds that it administers are protected and the financial interests of foreign banks in the pledged assets.
For similar reasons, although the FDIC may have allowed non-negotiable CDs to be treated as eligible collateral in the past, the FDIC is concerned that considering non-negotiable certificates of deposit as the equivalent of negotiable certificates of deposit, for asset pledge purposes, fails to take into consideration the potentially decreased value of non-negotiable certificates of deposit in the event of a forced sale, which is precisely the time the FDIC would be most concerned about their value, because of their non-negotiability. Therefore, except as provided in the final rule, the FDIC is adopting the proposal to allow only negotiable CDs with waivers of offset to be treated as eligible collateral for purposes of section 347.209. A limited exception is provided in the final rule, however, to treat non-negotiable CDs that insured branches have pledged on March 18, 2005 as eligible collateral until those certificates of deposit mature according to the original terms of their existing deposit agreements.
The FDIC also proposed various amendments relating to the asset maintenance calculation for insured branches, in section 347.210 of the proposal, including a revision that would have required insured branches to maintain eligible assets at a ratio of not less than 106 percent of the insured branch's daily third-party liabilities, rather than based upon the preceding quarter's average book value of the insured branch's liabilities. The amendment was proposed to avoid potential anomalies that could be caused by using liability information from the preceding quarter, such as instances where grandfathered branches that were winding down their operations needed to calculate their asset maintenance on a daily basis to maintain compliance with the rule.
Two of the commenters addressed this revision. The ABA expressed support for the amendment. The IIB, however, suggested that the mere change of the longstanding quarterly calculation method would impose systems and other burdens on insured branches that it felt could be avoided by the FDIC continuing to resolve such situations on a case-by-case basis. The IIB also suggested that the FDIC might consider a specific modification to the existing asset maintenance requirement for branches that are winding down their operations.
The FDIC has considered the comments, as well as the IIB's representations to FDIC staff that it is less difficult to calculate asset maintenance, based on fixed liability numbers, than based on the daily assets and liabilities of a branch, which can fluctuate, and has decided to retain the substance of the asset maintenance requirements specified in existing section 347.211(a). In doing so, the FDIC notes that the daily calculation method specified in the existing rule may be used to address situations where the quarterly calculation method is considered inappropriate from a supervisory perspective. This authority may be utilized, in the FDIC's discretion, in instances where the current third-party liabilities of a branch decline or increase substantially in relation to the average book value of the branch's third-party liabilities for the preceding quarter. In addition, appropriate conforming changes are also being made in the final rule to section 347.210(d), based on revisions being made to paragraph (a).
There were no public comments on the proposed amendments to subpart B, other than those discussed above, and they are being adopted in the final rule, with the revisions previously discussed.
The FDIC included a request for comments in the NPR concerning whether the FDIC should revise its existing views regarding the availability of FDIC insurance for wholesale U.S. branches of foreign banks.
As explained in the NPR, the IIB expressed the view that some foreign banks with U.S. wholesale branches (
In that 1998 final rule (63 FR 17056), which accompanied the issuance of the FDIC's existing foreign banking rules in 1998, the FDIC observed that because section 5(b) of the FDI Act (12 U.S.C. 1815(b)), addressing deposit insurance applications for U.S. branches of foreign banks, had not been repealed, it arguably may be possible for a U.S. branch of a foreign bank that does not engage in domestic retail deposit activity to seek deposit insurance from the FDIC. The FDIC also observed, however, that as a practical matter, it did not foresee many circumstances in which it could be appropriate for the FDIC's Board of Directors to approve such an application, but that the elimination of the optional insurance rule would not affect a foreign bank's ability to argue that it may make such an application under section 5(b) of the FDI Act. Finally, the FDIC noted that the FDIC Board of Directors would have to determine whether to actually accept and approve such an application, based on its review of the facts and circumstances involved, in addition to the pertinent legal and policy considerations.
Among the arguments the IIB advanced to support an expanded view of the availability of deposit insurance for wholesale branches were:
• A “plain meaning” construction of section 5(b) permits “any branch”—including a wholesale branch—to become insured;
• Congress expressly prohibited foreign banks from obtaining FDIC insurance for branches “engaged in domestic retail deposit activities” but did not remove the statutory provisions authorizing foreign banks to apply for deposit insurance for wholesale branches;
• The FDIC's approach ignores significant changes in regulatory practices and structures that have occurred since 1991 with regard to foreign banks; broader acceptance of the principle of “investor choice;” and rejection of a broader policy to force foreign banks to operate in the U.S. only through subsidiaries;
• Wholesale depositors often seek the benefits of FDIC insurance—even though the full amount of their deposits may not be insured. The ability to offer these benefits through a U.S. branch would provide a benefit to customers and increase a foreign bank's funding options;
• Optional FDIC insurance is likely to be attractive primarily to foreign banks already operating FDIC-insured branches and subsidiaries in the U.S. and to a relatively small number of other foreign banks, especially those seeking to serve particular ethnic markets. As a result, a more liberal policy likely would have a minimal effect on the deposit insurance fund; and
• Permitting wholesale branches to obtain deposit insurance is consistent with the business model that has been followed by some major U.S. banks that have retained insurance while focusing on wholesale markets.
Some of the arguments and observations countering the IIB's arguments were:
• Difficulty in reconciling the idea that Congress imposed the subsidiary requirement with regard to domestic retail deposit activity requiring deposit insurance for the protection of the FDIC with the implicit assumption that Congress did not believe such protection of the FDIC was needed with regard to wholesale branches of foreign banks because the first $100,000 of customer deposits in a wholesale branch would be insured to the same extent as deposits maintained in any other FDIC insured depository institution;
• Unlike bank subsidiaries, branches function as an integral part of the foreign bank itself and do not have their own independent board of directors. Thus, the directors of a foreign bank are not usually subject to the U.S.
• Essential records could also be difficult to reach if they are kept at the head office or at branches in other countries;
• A U.S. branch could be subjected to requirements under foreign laws or to political or economic decisions of a foreign government which conflict with domestic bank regulatory policies;
• Operating through a branch, as opposed to subsidiary structure, allows foreign banks the ability to engage in transactions with the home office without significant operational restrictions that might otherwise be applied to transactions with affiliates of insured U.S. banks; and
• Due to the operating relationship of a branch to its home office and dependence on the home office for financial support, the insolvency of a foreign bank with a multinational branch structure will result in the insolvency of the branches and this may pose complicated and time-consuming issues regarding the resolution of the branch that could more likely be avoided in situations involving banking subsidiaries.
The FDIC received two comments concerning this section. The CSBS expressed support for the view that “optional insurance” is not specifically authorized by statute. The IIB indicated that it continued to believe that the FDIC's concerns, such as those regarding the potential impact on the FDIC insurance fund, were misplaced or could be adequately addressed by other means. The IIB also requested that no action be taken on its request to allow it to continue to explore ways to address the FDIC's concerns.
As the FDIC has indicated above, there are arguments that can be made for providing deposit insurance coverage to wholesale U.S. branches of foreign banks, as well as compelling arguments that can be made against providing such coverage. Therefore, the FDIC has decided to maintain its previously stated position that, as a practical matter, it does not foresee many circumstances in which it could be appropriate for the FDIC's Board of Directors to approve such an application and that the FDIC Board of Directors would have to determine whether to actually accept and approve such an application, based on its review of the facts and circumstances involved, in addition to the pertinent legal and policy considerations.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Under the Regulatory Flexibility Act (RFA), an agency must either prepare a Final Regulatory Flexibility Analysis (FRFA) for a final rule or certify that the final rule will not have a significant economic impact on a substantial number of small entities.
The final rule makes primarily technical revisions to update, reorganize, and clarify the existing rules in subpart A of part 347 and subpart J of part 303. Subpart J of part 303 contains the procedural rules that implement part 347. The rules in subpart A of part 347 address issues related to the international activities and investments of insured state nonmember banks. In general, they implement the FDIC's statutory authority under section 18(d)(2) of the Federal Deposit Insurance Act (FDI Act) (12 U.S.C. 1828(
The final rule also makes revisions to update, reorganize, and clarify the existing rules in subpart B of part 347, as well as additional revisions and amendments that address supervisory issues. The rules in subpart B of part 347 principally address issues related to insured and noninsured U.S. branches of foreign banks under section 6 of the International Banking Act (IBA) (12 U.S.C. 3104). As of December 31, 2004, there were approximately 199 U.S. branches of foreign banks, including 12 insured branches. Of this number, there were approximately 90 U.S. branches of foreign banks that appear to qualify as small entities, including 6 insured branches. The 12 insured branches are presently subject to the FDIC's asset pledge requirement, which is revised in section 347.209 of the final rule. Although the revision of the asset pledge requirement to implement a risk-based approach may result in an increase in the amount of assets pledged for insured branches with low supervisory ratings, the FDIC does not believe this will affect the insured branches that qualify as small entities. Other revisions to the rules affecting noninsured branches are not substantive and, thus, should have no significant economic impact on noninsured branches that qualify as small entities.
The FDIC has determined that the final rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681).
Section 722 of the Gramm-Leach-Bliley Act (GLBA) (12 U.S.C. 4809), requires banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The proposed rule requested comments on how the rule might be changed to reflect the requirements of GLBA. No GLBA comments were received.
The Office of Management and Budget has determined that the final rule is not a “major rule” within the meaning of the relevant sections of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 801
Administrative practice and procedure, Authority delegations (Government agencies), Bank deposit insurance, Banks, banking, Reporting and recordkeeping requirements, Savings associations.
Banks, banking, Reporting and recordkeeping requirements.
Bank deposit insurance, Banks, banking, Savings associations.
Authority delegations (Government agencies), Bank deposit insurance, Banks, banking, Credit, Foreign banking, Investments, Reporting and recordkeeping requirements, United States investments abroad.
12 U.S.C. 378, 1813, 1815, 1817, 1818, 1819 (Seventh and Tenth), 1820, 1823, 1828, 1831a, 1831e, 1831o, 1831p-1, 1831w, 1835a, 1843(l), 3104, 3105, 3108, 3207; 15 U.S.C. 1601-1607.
(a) Notice procedures for general consent. Notice in the form of a letter from an eligible depository institution establishing or relocating a foreign branch pursuant to § 347.117(a) of this chapter must be provided to the appropriate FDIC office no later than 30 days after taking such action. The notice must include the location of the foreign branch, including a street address, and a statement that the foreign branch has not been located on a site on the World Heritage List or on the foreign country's equivalent of the National Register of Historic Places (National Register), in accordance with section 402 of the National Historic Preservation Act Amendments of 1980 (NHPA Amendments Act) (16 U.S.C. 470a-2). The FDIC will provide written acknowledgment of receipt of the notice.
(b) Filing procedures for other branch establishments—(1) Where to file. An applicant seeking to establish a foreign branch other than under § 347.117(a) of this chapter shall submit an application to the appropriate FDIC office.
(2) Content of filing. A complete letter application must include the following information:
(i) The exact location of the proposed foreign branch, including the street address, and a statement whether the foreign branch will be located on a site on the World Heritage List or on the foreign country's equivalent of the National Register, in accordance with section 402 of the NHPA Amendments Act;
(ii) Details concerning any involvement in the proposal by an insider of the applicant, as defined in § 303.2(u) of this part, including any financial arrangements relating to fees, the acquisition of property, leasing of property, and construction contracts;
(iii) A brief description of the applicant's business plan with respect to the foreign branch; and
(iv) A brief description of the proposed activities of the branch and, to the extent any of the proposed activities are not authorized by § 347.115 of this chapter, the applicant's reasons why they should be approved.
(3) Additional information. The FDIC may request additional information to complete processing.
(c) Processing—(1) Expedited processing for eligible depository institutions. An application filed under § 347.118(a) of this chapter by an eligible depository institution as defined in § 303.2(r) of this part seeking to establish a foreign branch by expedited processing will be acknowledged in writing by the FDIC and will receive expedited processing, unless the applicant is notified in writing to the contrary and provided with the basis for that decision. The FDIC may remove the application from expedited processing for any of the reasons set forth in § 303.11(c)(2) of this part. Absent such removal, an application processed under expedited processing is deemed approved 45 days after receipt of a substantially complete application by the FDIC, or on such earlier date authorized by the FDIC in writing.
(2) Standard processing. For those applications that are not processed pursuant to the expedited procedures, the FDIC will provide the applicant with written notification of the final action when the decision is rendered.
(d) Closing. Notices of branch closing under § 347.121 of this chapter, in the form of a letter including the name, location, and date of closing of the closed branch, shall be filed with the appropriate FDIC office no later than 30 days after the branch is closed.
(a) Notice procedures for general consent. Notice in the form of a letter from an eligible depository institution making direct or indirect investments in a foreign organization pursuant to § 347.117(b) of this chapter shall be provided to the appropriate FDIC office no later than 30 days after taking such action. The FDIC will provide written acknowledgment of receipt of the notice.
(b) Filing procedures for other investments—(1) Where to file. An applicant seeking to make a foreign investment other than under § 347.117(b) of this chapter shall submit an application to the appropriate FDIC office.
(c) Processing—(1) Expedited processing for eligible depository institutions. An application filed under § 347.118(b) of this chapter by an eligible depository institution as defined in § 303.2(r) of this part seeking to make direct or indirect investments in a foreign organization will be acknowledged in writing by the FDIC and will receive expedited processing, unless the applicant is notified in writing to the contrary and provided with the basis for that decision. The FDIC may remove the application from expedited processing for any of the reasons set forth in § 303.11(c)(2) of this
(b) Processing—(1) Expedited processing for eligible insured branches. An application filed by an eligible insured branch as defined in § 303.181(c) of this part will be acknowledged in writing by the FDIC and will receive expedited processing if the applicant is proposing to move within the same state, unless the applicant is notified to the contrary and provided with the basis for that decision. The FDIC may remove an application from expedited processing for any of the reasons set forth in § 303.11(c)(2) of this part. Absent such removal, an application processed under expedited processing will be deemed approved on the latest of the following:
(i) The 21st day after the FDIC's receipt of a substantially complete application; or
(ii) The 5th day after expiration of the comment period described in paragraph (c) of this section.
(e) Relocation of insured branch from one state to another. If the foreign bank proposes to relocate an insured state branch to a state that is outside the state where the branch is presently located, in addition to meeting the approval criteria contained in paragraph (d) of this section, the foreign bank must:
(i) Comply with any applicable state laws or regulations of the states affected by the proposed relocation; and
(ii) Obtain any required regulatory approvals from the appropriate state licensing authority of the state to which the insured branch proposes to relocate before relocating the existing branch operations and surrendering its existing license to the appropriate state licensing authority of the state from which the branch is relocating.
(a) Filing procedures— (1) Where to file. An application by a foreign bank for consent to operate as a noninsured state branch, as permitted by § 347.215(b) of this chapter, shall be submitted in writing to the appropriate FDIC office.
(a) Filing procedures—(1) Where to file. An application by an insured state branch seeking approval to conduct activities not permissible for a federal branch, as required by § 347.212(a) of this chapter, shall be submitted in writing to the appropriate FDIC office.
(2) * * *
(iv) A statement by the applicant of whether it is in compliance with sections 347.209 and 347.210 of this chapter;
(b) Divestiture or cessation—(1) Where To file. Divestiture plans necessitated by a change in law or other authority, as required by § 347.212(e) of this chapter, shall be submitted in writing to the appropriate FDIC office.
12 U.S.C. 1815(a), 1815(b), 1816, 1818(a), 1818(b), 1818(c), 1818(t), 1819 (Tenth), 1828(c), 1828(d), 1828(i), 1828(n), 1828(o), 1831o, 1835, 3907, 3909, 4808; Pub. L. 102-233, 105 Stat. 1761, 1789, 1790 (12 U.S.C. 1831n note); Pub. L. 102-242, 105 Stat. 2236, 2355, as amended by Pub. L. 103-325, 108 Stat. 2160, 2233 (12 U.S.C. 1828 note); Pub. L. 102-242, 105 Stat. 2236, 2386, as amended by Pub. L. 102-550, 106 Stat. 3672, 4089 (12 U.S.C. 1828 note).
(c) Capital categories for insured branches of foreign banks. For purposes of the provisions of section 38 and this subpart, an insured branch of a foreign bank shall be deemed to be:
(1) Well capitalized if the insured branch:
(i) Maintains the pledge of assets required under § 347.209 of this chapter; and
(ii) Maintains the eligible assets prescribed under § 347.210 of this chapter at 108 percent or more of the preceding quarter's average book value of the insured branch's third-party liabilities; and
(iii) Has not received written notification from:
(A) The OCC to increase its capital equivalency deposit pursuant to 12 CFR 28.15(b), or to comply with asset maintenance requirements pursuant to 12 CFR 28.20; or
(B) The FDIC to pledge additional assets pursuant to § 347.209 of this chapter or to maintain a higher ratio of eligible assets pursuant to § 347.210 of this chapter.
(2) Adequately capitalized if the insured branch:
(i) Maintains the pledge of assets required under § 347.209 of this chapter; and
(ii) Maintains the eligible assets prescribed under § 347.210 of this chapter at 106 percent or more of the preceding quarter's average book value of the insured branch's third-party liabilities; and
(iii) Does not meet the definition of a well capitalized insured branch.
(3) Undercapitalized if the insured branch:
(i) Fails to maintain the pledge of assets required under § 347.209 of this chapter; or
(ii) Fails to maintain the eligible assets prescribed under § 347.210 of this chapter at 106 percent or more of the preceding quarter's average book value of the insured branch's third-party liabilities.
(4) Significantly undercapitalized if it fails to maintain the eligible assets prescribed under § 347.210 of this chapter at 104 percent or more of the preceding quarter's average book value of the insured branch's third-party liabilities.
(5) Critically undercapitalized if it fails to maintain the eligible assets prescribed under § 347.210 of this chapter at 102 percent or more of the preceding quarter's average book value of the insured branch's third-party liabilities.
12 U.S.C. 1441, 1441b, 1813, 1815, 1817-1819; Pub. L. 104-208, 110 Stat. 3009-479 (12 U.S.C. 1821).
(a) * * *
(1) * * *
(i) * * *
(B) * * *
(
(
(ii) * * *
(B) * * *
(
(
12 U.S.C. 1813, 1815, 1817, 1819, 1820, 1828, 3103, 3104, 3105, 3108, 3109; Title IX, Pub. L. 98—181, 97 Stat. 1153.
(a) This subpart is issued pursuant to section 18(d) and (
(b) The rules in subpart A address the FDIC's requirements for insured state nonmember bank investments in foreign organizations, permissible foreign financial activities, loans or extensions of credit to or for the account of foreign organizations, and the FDIC's recordkeeping, supervision, and approval requirements. The rules also address the permissible activities for foreign branches of insured state nonmember banks, as well as the FDIC's requirements for establishing, operating, relocating and closing of branches in foreign countries.
For the purposes of this subpart:
(a) An affiliate of an insured state nonmember bank means:
(1) Any entity of which the insured state nonmember bank is a direct or indirect subsidiary or which otherwise controls the insured state nonmember bank;
(2) Any organization which is a direct or indirect subsidiary of such entity or which is otherwise controlled by such entity; or
(3) Any other organization that is a direct or indirect subsidiary of the insured state nonmember bank or is otherwise controlled by the insured state nonmember bank.
(b) Control means the ability to control in any manner the election of a majority of an organization's directors or trustees; or the ability to exercise a controlling influence over the management and policies of an organization. An insured state nonmember bank is deemed to control an organization of which it is a general partner or its affiliate is a general partner.
(c) Domestic means United States.
(d) Eligible insured state nonmember bank means an eligible depository institution as defined in § 303.2(r) of this chapter.
(e) Equity interest means any ownership interest or rights in an organization, whether through an equity security, contribution to capital, general or limited partnership interest, debt or warrants convertible into ownership interests or rights, loans providing profit participation, binding commitments to acquire any such items, or some other form of business transaction.
(f) Equity security means voting or nonvoting shares, stock, investment contracts, or other interests representing ownership or participation in a company or similar enterprise, as well as any instrument convertible to any such interest at the option of the holder without payment of substantial additional consideration.
(g) FRB means the Board of Governors of the Federal Reserve System.
(h) Foreign bank means an organization that is organized under the laws of a foreign country, a territory of the United States, Puerto Rico, Guam, American Samoa, or the Virgin Islands that:
(1) Is recognized as a bank by the bank supervisory or monetary authority of the country of its organization or the
(2) Receives deposits to a substantial extent in the regular course of its business; and
(3) Has the power to accept demand deposits.
(i) Foreign banking organization means a foreign organization that is formed for the sole purpose of either holding shares of a foreign bank or performing nominee, fiduciary, or other banking services incidental to the activities of a foreign branch or foreign bank affiliate of the insured state nonmember bank.
(j) Foreign branch means an office or place of business located outside the United States, its territories, Puerto Rico, Guam, American Samoa, the Trust Territory of the Pacific Islands, or the Virgin Islands, at which banking operations are conducted, but does not include a representative office.
(k) Foreign country means any country other than the United States and includes any territory, dependency, or possession of any such country or of the United States.
(l) Foreign organization means an organization that is organized under the laws of a foreign country.
(m) Insured state nonmember bank or bank means a state bank, as defined by § 3(a)(2) of the Federal Deposit Insurance Act (12 U.S.C. 1813(a)(2)), whose deposits are insured by the FDIC and that is not a member of the Federal Reserve System.
(n) Indirectly means investments held or activities conducted by a subsidiary of an organization.
(o) Investment grade means a security that is rated in one of the four highest categories by:
(1) Two or more NRSROs; or
(2) One NRSRO if the security is rated by only one NRSRO.
(p) Loan or extension of credit means all direct and indirect advances of funds to a person, government, or entity made on the basis of any obligation of that person, government, or entity to repay funds.
(q) Organization or entity means a corporation, partnership, association, bank, or other similar entity.
(r) NRSRO means a nationally recognized statistical rating organization as designated by the Securities and Exchange Commission.
(s) Representative office means an office that engages solely in representative functions such as soliciting new business for its home office or acting as liaison between the home office and local customers, but which has no authority to make business or contracting decisions other than those relating to the personnel and premises of the representative office.
(t) Subsidiary means any organization more than 50 percent of the voting equity interests of which are directly or indirectly held by another organization.
(u) Tier 1 capital means Tier 1 capital as defined in § 325.2 of this chapter.
(v) Well capitalized means well capitalized as defined in § 325.103 of this chapter.
A bank may acquire and retain equity interests in a foreign organization or establish a foreign branch, subject to the requirements of this subpart, if it is authorized to do so by the law of the state in which the bank is chartered.
(a) Investment in foreign banks or foreign banking organizations. A bank may directly or indirectly acquire and retain equity interests in a foreign bank or foreign banking organization.
(b) Investment in other foreign organizations. A bank may only: (1) acquire and retain equity interests in foreign organizations, other than foreign banks or foreign banking organizations in amounts of 50 percent or less of the foreign organization's voting equity interests, if the equity interest is held through a domestic or foreign subsidiary; and
(2) The bank meets its minimum capital requirements.
(a) Limitation on authorized activities. A bank may not directly or indirectly acquire or hold equity interests in a foreign organization that will result in the bank and its affiliates:
(1) Holding more than 50 percent, in the aggregate, of the voting equity interest in such foreign organization; or
(2) Controlling such foreign organization, unless the activities of a foreign organization are limited to those authorized under paragraph (b) of this section.
(b) Authorized activities. The following financial activities are authorized outside the United States:
(1) Commercial and other banking activities.
(2) Financing, including commercial financing, consumer financing, mortgage banking, and factoring, subject to compliance with any attendant restrictions contained in 12 CFR 225.28(b).
(3) Leasing real or personal property, acting as agent, broker or advisor in leasing real or personal property, subject to compliance with any attendant restrictions in 12 CFR 225.28(b).
(4) Acting as a fiduciary, subject to compliance with any attendant restrictions in 12 CFR 225.28(b).
(5) Underwriting credit life, credit accident and credit health insurance.
(6) Performing services for other direct or indirect operations of a domestic banking organization, including representative functions, sale of long-term debt, name saving, liquidating assets acquired to prevent loss on a debt previously contracted in good faith, and other activities that are permissible for a bank holding company under sections 4(a)(2)(A) and 4(c)(1)(C) of the Bank Holding Company Act.
(7) Holding the premises of a branch of an Edge corporation or insured state nonmember bank or the premises of a direct or indirect subsidiary, or holding or leasing the residence of an officer or employee of a branch or a subsidiary.
(8) Providing investment, financial, or economic services, subject to compliance with any attendant restrictions in 12 CFR 225.28(b).
(9) General insurance agency and brokerage.
(10) Data processing.
(11) Organizing, sponsoring, and managing a mutual fund if the fund's shares are not sold or distributed in the United States or to U.S. residents and the fund does not exercise management control over the firms in which it invests.
(12) Performing management consulting services, provided that such services when rendered with respect to the domestic market must be restricted to the initial entry.
(13) Underwriting, distributing, and dealing in debt securities outside the United States.
(14) With the prior approval of the FDIC under section 347.119(d), underwriting, distributing, and dealing in equity securities outside the United States.
(15) Operating a travel agency in connection with financial services offered outside the United States by the bank or others.
(16) Providing futures commission merchant services, subject to compliance with any attendant restrictions in 12 CFR 225.28(b).
(17) Engaging in activities that the FRB has determined in Regulation Y (12 CFR 225.28(b)) are closely related to banking under section 4(c)(8) of the Bank Holding Company Act.
(18) Engaging in other activities, with the prior approval of the FDIC.
(c) Limitation on activities authorized under Regulation Y. If a bank relies solely on the cross-reference to
(d) Approval of other activities. Activities that are not specifically authorized by this section, but that are authorized by 12 CFR 211.10 or FRB interpretations of activities authorized by that section, may be authorized by specific consent of the FDIC on an individual basis and upon such terms and conditions as the FDIC may consider appropriate. Activities that will be engaged in as principal (defined by reference to section 362.1(b) of this chapter), and that are not authorized by 12 CFR 211.10 or FRB interpretations of activities authorized under that section, must satisfy the requirements of part 362 of this chapter and be approved by the FDIC under this part as well as part 362 of this chapter.
Going concerns. If a bank acquires an equity interest in a foreign organization that is a going concern, no more than 5 percent of either the consolidated assets or revenues of the foreign organization may be attributable to activities that are not permissible under § 347.105(b).
(a) Joint ventures. If a bank, directly or indirectly, acquires or holds an equity interest in a foreign organization that is a joint venture, and the bank or its affiliates do not control the foreign organization, no more than 10 percent of either the consolidated assets or revenues of the foreign organization may be attributable to activities that are not permissible under § 347.105(b).
(b) Joint venture defined. For purposes of this section, the term “joint venture” means any organization in which 20 percent or more but not in excess of 50 percent of the voting equity interests, in the aggregate, are directly or indirectly held by a bank or its affiliates.
(a) Portfolio investments. If a bank, directly or indirectly, acquires or holds an equity interest in a foreign organization as a portfolio investment and the foreign organization is not controlled, directly or indirectly, by the bank or its affiliates:
(1) No more than 10 percent of either the consolidated assets or revenues of the foreign organization may be attributable to activities that are not permissible under § 347.105(b); and
(2) Any loans or extensions of credit made by the bank and its affiliates to the foreign organization must be on substantially the same terms, including interest rates and collateral, as those prevailing at the same time for comparable transactions between the bank or its affiliates and nonaffiliated organizations.
(b) Portfolio investment defined. For purposes of this section, the term “portfolio investment” means an investment in an organization in which less than 20 percent of the voting equity interests, in the aggregate, are directly or indirectly held by a bank or its affiliates.
(a) A bank may, through a subsidiary authorized by §§ 347.105 or 347.106, or an Edge corporation if also authorized by the FRB, acquire and hold equity interests in foreign organizations that are not foreign banks or foreign banking organizations and that engage generally in activities beyond those listed in § 347.105(b), subject to the following:
(1) The amount of the investment does not exceed 15 percent of the bank's Tier 1 capital;
(2) The aggregate holding of voting equity interests of one foreign organization by the bank and its affiliates must be less than:
(i) 20 percent of the foreign organization's voting equity interests; and
(ii) 40 percent of the foreign organization's voting and nonvoting equity interests;
(b) The bank or its affiliates must not otherwise control the foreign organization; and
(c) Loans or extensions of credit made by the bank and its affiliates to the foreign organization must be on substantially the same terms, including interest rates and collateral, as those prevailing at the same time for comparable transactions between the bank or its affiliates and nonaffiliated organizations.
References in §§ 347.107, 347.108, and 347.109 to equity interests of foreign organizations held by an affiliate of a bank include equity interests held in connection with an underwriting or for distribution or dealing by an affiliate permitted to do so by §§ 362.8 or 362.18 of this chapter or section 4(c)(8) of the Bank Holding Company Act (12 U.S.C. 1843(c)(8)).
A bank that holds an equity interest in one or more foreign organizations which underwrite, deal, or distribute equity securities outside the United States as authorized by § 347.105(b)(14) is subject to the following limitations:
(a) Underwriting commitment limits. (1) The aggregate underwriting commitments by the foreign organizations for the equity securities of a single entity, taken together with underwriting commitments by any affiliate of the bank under the authority of 12 CFR 211.10(b), may not exceed the lesser of $60 million or 25 percent of the bank's Tier 1 capital, except as otherwise provided in this paragraph.
(2) Underwriting commitments in excess of this limit must be either:
(i) Covered by binding commitments from subunderwriters or purchasers; or
(ii) Deducted from the capital of the bank, with at least 50 percent of the deduction being taken from Tier 1 capital, with the bank remaining well capitalized after this deduction.
(b) Distribution and dealing limits. The equity securities of any single entity held for distribution or dealing by the foreign organizations, taken together with equity securities held for distribution or dealing by any affiliate of the bank under the authority of 12 CFR 211.10:
(1) May not exceed the lesser of $30 million or 5 percent of the bank's Tier 1 capital, subject to the following:
(i) Any equity securities acquired pursuant to any underwriting commitment extending up to 90 days after the payment date for the underwriting may be excluded from this limit;
(ii) Any equity securities of the entity held under the authority of §§ 347.105 through 347.109 or 12 CFR 211.10 for purposes other than distribution or dealing must be included in this limit; and
(iii) Up to 75 percent of the position in an equity security may be reduced by netting long and short positions in the same security, or offsetting cash positions against derivative instruments referenced to the same security so long as the derivatives are part of a prudent hedging strategy; and
(2) Must be included in calculating the general consent limits under § 347.117(b)(3) if the bank relies on the general consent provisions as authority to acquire equity interests of the same foreign entity for investment or trading.
(c) Additional distribution and dealing limits. With the exception of equity securities acquired pursuant to any underwriting commitment extending up to 90 days after the payment date for the underwriting, equity securities of a single entity held for distribution or dealing by all
(d) Combined limits. The aggregate of the following may not exceed 25 percent of the bank's Tier 1 capital:
(1) All equity interests of foreign organizations held for investment or trading under § 347.109 or by an affiliate of the bank under the corresponding paragraph of 12 CFR 211.10.
(2) All underwriting commitments under paragraph (a) of this section, taken together with all underwriting commitments by any affiliate of the bank under the authority of 12 CFR 211.10, after excluding the amount of any underwriting commitment:
(i) Covered by binding commitments from subunderwriters or purchasers under paragraph (a)(1) of this section or the comparable provision of 12 CFR 211.10; or
(ii) Already deducted from the bank's capital under paragraph (a)(2) of this section, or the appropriate affiliate's capital under the comparable provisions of 12 CFR 211.10; and
(3) All equity securities held for distribution or dealing under paragraph (b) of this section, taken together with all equity securities held for distribution or dealing by any affiliate of the bank under the authority of 12 CFR 211.10, after reducing by up to 75 percent the position in any equity security by netting and offset, as permitted by paragraph (b)(1)(iii) of this section or the comparable provision of 12 CFR 211.10.
(a) If a bank acquires or retains an equity interest in a foreign organization that acts as a futures commission merchant pursuant to § 347.105(b)(16), the foreign organization may not be a member of an exchange or clearing association that requires members to guarantee or otherwise contract to cover losses suffered by other members unless the:
(1) Foreign organization's liability does not exceed two percent of the bank's Tier 1 capital, or
(2) Bank has obtained the prior approval of the FDIC under § 347.120(d).
(b) [Reserved]
(a) A bank, acting under the authority provided in this subpart, may not directly or indirectly hold:
(1) Equity interests of any foreign organization that engages in the general business of buying or selling goods, wares, merchandise, or commodities in the United States; or
(2) More than 5 percent of the equity interests of any foreign organization that engages in activities in the United States unless any activities in which the foreign organization engages in the United States are incidental to its international or foreign business.
(b) For purposes of this section:
(1) A foreign organization is not engaged in any business or activities in the United States unless it maintains an office in the United States other than a representative office.
(2) The following activities are incidental to international or foreign business:
(i) Activities that are permissible for an Edge corporation in the United States under 12 CFR 211.6; or
(ii) Other activities approved by the FDIC.
(a) Loans or extensions of credit. A bank that directly or indirectly holds equity interests in a foreign organization pursuant to the authority of this subpart may make loans or extensions of credit to or for the accounts of the organization without regard to the provisions of section 18(j) of the FDI Act (12 U.S.C. 1828(j)).
(b) Debts previously contracted. Equity interests acquired to prevent a loss upon a debt previously contracted in good faith are not subject to the limitations or procedures of this subpart; however, they must be disposed of promptly but in no event later than two years after their acquisition, unless the FDIC authorizes retention for a longer period.
In addition to its general banking powers and if permitted by the law of the state in which the bank is chartered, a foreign branch of a bank may conduct the following activities to the extent that they are consistent with banking practices in a foreign country where the bank maintains a branch:
(a) Guarantees. Guarantee debts, or otherwise agree to make payments on the occurrence of readily ascertainable events including, without limitation, nonpayment of taxes, rentals, customs duties, or costs of transport and loss or nonconformance of shipping documents, if:
(1) The guarantee or agreement specifies a maximum monetary liability; and
(2) To the extent the guarantee or agreement is not subject to a separate amount limit under state or federal law, the amount of the guarantee or agreement is combined with loans and other obligations for purposes of applying any legal lending limits.
(b) Government obligations. Engage in the following types of transactions with respect to the obligations of foreign countries, so long as aggregate investments, securities held in connection with distribution and dealing, and underwriting commitments do not exceed ten percent of the bank's Tier 1 capital:
(1) Underwrite, distribute and deal, invest in, or trade obligations of:
(i) The national government of the country in which the branch is located or its political subdivisions; and
(ii) An agency or instrumentality of such national government if supported by the taxing authority, guarantee, or full faith and credit of the national government.
(2) Underwrite, distribute and deal, invest in or trade obligations
(i) The national government of any foreign country or its political subdivisions, to the extent permissible under the law of the issuing foreign country; and
(ii) An agency or instrumentality of the national government of any foreign country to the extent permissible under the law of the issuing foreign country, if supported by the taxing authority, guarantee, or full faith and credit of the national government.
(c) Local investments. (1) Acquire and hold local investments in:
(i) Equity securities of the central bank, clearinghouses, governmental entities, and government sponsored development banks of the country in which the branch is located;
(ii) Other debt securities eligible to meet local reserve or similar requirements; and
(iii) Shares of automated electronic payment networks, professional
(2) Aggregate local investments (other than those required by the law of the foreign country or permissible under section 5136 of the Revised Statutes (12 U.S.C. 24 (Seventh)) by all the bank's branches in a single foreign country must not exceed 1 percent of the total deposits in all the bank's branches in that country as reported in the preceding year-end Report of Income and Condition (Call Report):
(d) Insurance. Act as an insurance agent or broker.
(e) Employee benefits program. Pay to an employee of a branch, as part of an employee benefits program, a greater rate of interest than that paid to other depositors of the branch.
(f) Repurchase agreements. Engage in repurchase agreements involving securities and commodities that are the functional equivalents of extensions of credit.
(g) Other activities. Engage in other activities, with the prior approval of the FDIC.
(h) Approval of other activities. Activities that are not specifically authorized by this section, but that are authorized by 12 CFR 211.4 or FRB interpretations of activities authorized by that section, may be authorized by specific consent of the FDIC on an individual basis and upon such terms and conditions as the FDIC may consider appropriate. Activities that will be engaged in as principal (defined by reference to section 362.1(b) of this chapter), and that are not authorized by 12 CFR 211.4 or FRB interpretations of activities authorized under that section, must satisfy the requirements of part 362 of this chapter and be approved by the FDIC under this part as well as part 362 of this chapter.
(a) Records, controls and reports. A bank with any foreign branch, any investment in a foreign organization of 20 percent or more of the organization's voting equity interests, or control of a foreign organization must maintain a system of records, controls and reports that, at minimum, provide for the following:
(1) Risk assets. To permit assessment of exposure to loss, information furnished or available to the main office should be sufficient to permit periodic and systematic appraisals of the quality of risk assets, including loans and other extensions of credit. Coverage should extend to a substantial proportion of the risk assets in the branch or foreign organization, and include the status of all large credit lines and of credits to customers also borrowing from other offices or affiliates of the bank. Appropriate information on risk assets may include:
(i) A recent financial statement of the borrower or obligee and current information on the borrower's or obligee's financial condition;
(ii) Terms, conditions, and collateral;
(iii) Data on any guarantors;
(iv) Payment history; and
(v) Status of corrective measures employed.
(2) Liquidity. To enable assessment of local management's ability to meet its obligations from available resources, reports should identify the general sources and character of the deposits, borrowing, and other funding sources employed in the branch or foreign organization with special reference to their terms and volatility. Information should be available on sources of liquidity—cash, balances with banks, marketable securities, and repayment flows—such as will reveal their accessibility in time and any risk elements involved.
(3) Contingencies. Data on the volume and nature of contingent items such as loan commitments and guarantees or their equivalents that permit analysis of potential risk exposure and liquidity requirements.
(4) Controls. Reports on the internal and external audits of the branch or foreign organization in sufficient detail to permit determination of conformance to auditing guidelines. Appropriate audit reports may include coverage of:
(i) Verification and identification of entries on financial statements;
(ii) Income and expense accounts, including descriptions of significant chargeoffs and recoveries;
(iii) Operations and dual-control procedures and other internal controls;
(iv) Conformance to head office guidelines on loans, deposits, foreign exchange activities, accounting procedures in compliance with applicable accounting standards, and discretionary authority of local management;
(v) Compliance with local laws and regulations; and
(vi) Compliance with applicable U.S. laws and regulations.
(b) Availability of information to examiners; reports. (1) Information about foreign branches or foreign organizations must be made available to the FDIC by the bank for examination and other supervisory purposes.
(2) The FDIC may from time to time require a bank to make and submit such reports and information as may be necessary to implement and enforce the provisions of this subpart, and the bank shall submit an annual report of condition for each foreign branch pursuant to instructions provided by the FDIC.
(a) General consent to establish or relocate a foreign branch. General consent of the FDIC is granted, subject to the written notification requirement contained in section 303.182(a) and consistent with the requirements of this subpart, for an:
(1) Eligible bank to establish a foreign branch conducting activities authorized by section 347.115 of this section in any foreign country in which:
(i) The bank already operates one or more foreign branches or foreign bank subsidiaries;
(ii) The bank's holding company operates a foreign bank subsidiary; or
(iii) An affiliated bank or Edge or Agreement corporation operates one or more foreign branches or foreign bank subsidiaries.
(2) Insured state nonmember bank to relocate an existing foreign branch within a foreign country.
(b) General consent to invest in a foreign organization. General consent of the FDIC is granted, subject to the written notification requirement contained in section 303.183(a) (unless no notification is required because the investment is acquired for trading purposes) and consistent with the requirements of this subpart, for an eligible bank to make investments in foreign organizations, directly or indirectly, if:
(1) The bank operates at least one foreign bank subsidiary or foreign branch, an affiliated bank or Edge or Agreement corporation operates at least one foreign bank subsidiary or foreign branch, or the bank's holding company operates at least one foreign bank subsidiary in the country where the foreign organization will be located;
(2) In any instance where the bank and its affiliates will hold 20 percent or more of the foreign organization's voting equity interests or control the foreign organization, at least one state nonmember bank has a foreign bank subsidiary or foreign branch (other than a shell branch) in the country where the foreign organization will be located;
(3) The investment is within one of the following limits:
(i) The investment is acquired at net asset value from an affiliate;
(ii) The investment is a reinvestment of cash dividends received from the same foreign organization during the preceding 12 months; or
(iii) The total investment, directly or indirectly, in a single foreign organization in any transaction or series of transactions during a twelve-month period does not exceed 2 percent of the bank's Tier 1 capital, and such investments in all foreign organizations in the aggregate do not exceed:
(A) 5 percent of the bank's Tier 1 capital during a 12-month period; and
(B) Up to an additional 5 percent of the bank's Tier 1 capital if the investments are acquired for trading purposes.
(a) Expedited processing of branch applications. An eligible bank may establish a foreign branch conducting activities authorized by § 347.115 in an additional foreign country, after complying with the expedited processing requirements contained in § 303.182(b) and (c)(1), if any of the following are located in two or more foreign countries:
(1) Foreign branches or foreign bank subsidiaries of the eligible bank;
(2) Foreign branches or foreign bank subsidiaries of banks and Edge or Agreement corporations affiliated with the eligible bank; and
(3) Foreign bank subsidiaries of the eligible bank's holding company.
(b) Expedited processing of applications for investment in foreign organizations. An investment that does not qualify for general consent but is otherwise in conformity with the limits and requirements of this subpart may be made 45 days after an eligible bank files a substantially complete application with the FDIC in compliance with the expedited processing requirements contained in § 303.183(b) and (c)(1), or within such earlier time as authorized by the FDIC.
General consent and expedited processing under this subpart do not apply in the following circumstances:
(a) Limitation on access to supervisory information in foreign country.
(1) Applicable law or practice in the foreign country where the foreign organization or foreign branch would be located would limit the FDIC's access to information for supervisory purposes; and
(i) A bank would hold 20 percent or more of the voting equity interests of a foreign organization or control such organization as a result of a foreign investment; or
(ii) A bank would be establishing a foreign branch.
(b) World Heritage site. A foreign branch of a bank would be located on a site on the World Heritage List or on the foreign country's equivalent of the National Register of Historic Places, in accordance with section 403 of the National Historic Preservation Act Amendments of 1980 (16 U.S.C. 470a-2).
(c) Modification or suspension of general consent or expedited processing. The FDIC at any time notifies the bank that the FDIC is modifying or suspending its general consent or expedited processing procedure.
(d) Specific consent. Direct or indirect investments in or activities of foreign organizations by banks, the establishment of foreign branches or issues regarding the types or amounts of activity that can be engaged in by foreign branches, which are not authorized under §§ 347.117 or 347.118 require prior review and specific consent of the FDIC.
In computing the amount that may be invested in any foreign organization under §§ 347.117 through 347.119, any investments held by an affiliate of a bank must be included.
A bank must comply with the written notification requirement contained in § 303.182(d) when it closes a foreign branch.
The FDIC may impose such conditions on authority granted in this subpart as it considers appropriate. If a bank is unable or fails to comply with the requirements of this subpart or any conditions imposed by the FDIC regarding transactions under this subpart, the FDIC may require termination of any activities or divestiture of investments permitted under this subpart after giving the bank notice and a reasonable opportunity to be heard on the matter.
(a) This subpart is issued pursuant to sections 5(c) and 10(b)(4) of the Federal Deposit Insurance Act (FDI Act)(12 U.S.C. 1815(c) and 1820(b)(4)) and sections 6, 7, and 15 of the International Banking Act of 1978 (IBA)(12 U.S.C. 3104, 3105, and 3109).
(b) This subpart implements the insured branch asset pledge and examination commitment requirement for foreign banks in the FDI Act. It also implements the deposit insurance, permissible activity, and cross-border cooperation provisions of the IBA regarding the FDIC. Sections 347.203-347.211 apply to state and federal branches whose deposits are insured. Sections 347.204 and 347.207 are applicable to depository institution subsidiaries of a foreign bank. Section 347.212 applies to insured state branches and §§ 347.213-347.216 apply to state branches whose deposits are not insured by the FDIC.
For the purposes of this subpart:
(a) Affiliate means any entity that controls, is controlled by, or is under common control with another entity. An entity shall be deemed to “control” another entity if the entity directly or indirectly owns, controls, or has the power to vote 25 percent or more of any class of voting securities of the other entity or controls in any manner the election of a majority of the directors or trustees of the other entity.
(b) Branch means any office or place of business of a foreign bank located in any state of the United States at which deposits are received. The term does not include any office or place of business deemed by the state licensing authority or the Comptroller of the Currency to be an agency.
(c) Deposit has the same meaning as that term in section 3(l) of the Federal Deposit Insurance Act (12 U.S.C. 1813(l)).
(d) Depository means any insured state bank, national bank, or insured branch.
(e) Domestic retail deposit activity means the acceptance by a federal or state branch of any initial deposit of less than $100,000.
(f) Federal branch means a branch of a foreign bank established and operating under the provisions of section 4 of the International Banking Act of 1978 (12 U.S.C. 3102).
(g) Foreign bank means any company organized under the laws of a foreign country, any territory of the United States, Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, or the Virgin Islands, which engages in the business of banking. The term includes foreign commercial banks, foreign merchant banks and other foreign institutions that engage in banking
(h) Foreign business means any entity including, but not limited to, a corporation, partnership, sole proprietorship, association, foundation or trust, which is organized under the laws of a foreign country or any United States entity which is owned or controlled by an entity which is organized under the laws of a foreign country or a foreign national.
(i) Foreign country means any country other than the United States and includes any colony, dependency or possession of any such country.
(j) FRB means the Board of Governors of the Federal Reserve System.
(k) Home state of a foreign bank means the state so determined by the election of the foreign bank, or in default of such election, by the Board of Governors of the Federal Reserve System.
(l) Immediate family member of a natural person means the spouse, father, mother, brother, sister, son or daughter of that natural person.
(m) Initial deposit means the first deposit transaction between a depositor and the branch where there is no existing deposit relationship. The initial deposit may be placed into different deposit accounts or into different kinds of deposit accounts, such as demand, savings or time. Deposit accounts that are held by a depositor in the same right and capacity may be added together for the purposes of determining the dollar amount of the initial deposit.
(n) Insured bank means any bank, including a foreign bank with an insured branch, the deposits of which are insured in accordance with the provisions of the Federal Deposit Insurance Act.
(o) Insured branch means a branch of a foreign bank any deposits of which branch are insured in accordance with the provisions of the Federal Deposit Insurance Act.
(p) Large United States business means any entity including, but not limited to, a corporation, partnership, sole proprietorship, association, foundation or trust which is organized under the laws of the United States or any state thereof, and:
(1) Whose securities are registered on a national securities exchange or quoted on the National Association of Securities Dealers Automated Quotation System; or
(2) Has annual gross revenues in excess of $1,000,000 for the fiscal year immediately preceding the initial deposit.
(q) A majority owned subsidiary means a company the voting stock of which is more than 50 percent owned or controlled by another company.
(r) Noninsured branch means a branch of a foreign bank deposits of which branch are not insured in accordance with the provisions of the Federal Deposit Insurance Act.
(s) OCC means the Office of the Comptroller of the Currency.
(t) Person means an individual, bank, corporation, partnership, trust, association, foundation, joint venture, pool, syndicate, sole proprietorship, unincorporated organization, or any other form of entity.
(u) Significant risk to the deposit insurance fund shall be understood to be present whenever there is a high probability that the Bank Insurance Fund administered by the FDIC may suffer a loss.
(v) State means any state of the United States or the District of Columbia.
(w) State branch means a branch of a foreign bank established and operating under the laws of any state.
(x) Wholly owned subsidiary means a company the voting stock of which is 100 percent owned or controlled by another company except for a nominal number of directors' shares.
The FDIC will not insure deposits in any branch of a foreign bank unless the foreign bank agrees that every branch established or operated by the foreign bank in the same state that engages in domestic retail deposit activity will be an insured branch.
(a) In connection with an application for deposit insurance for a U.S. branch or depository institution subsidiary of a foreign bank that has been determined to be subject to comprehensive consolidated supervision by the appropriate Federal banking agency, as defined in section 3(q) of the FDI Act (12 U.S.C. 1813(q)), the foreign bank shall provide binding written commitments (including a consent to U.S. jurisdiction and designation of agent for service, acceptable to the FDIC) to the following terms:
(1) The FDIC will be provided with any information about the foreign bank and its affiliates located outside of the United States that the FDIC requests to determine:
(i) The relationship between the U.S. branch or depository institution subsidiary and its affiliates; and
(ii) The effect of such relationship on such U.S. branch or depository institution subsidiary;
(2) The FDIC will be allowed to examine the affairs of any office, agency, branch or affiliate of the foreign bank located in the United States and will be provided any information requested to determine:
(i) The relationship between the U.S. branch or depository institution subsidiary and such offices, agencies, branches or affiliates; and
(ii) The effect of such relationship on such U.S. branch or depository institution subsidiary.
(3) The FDIC will not process a deposit insurance application for any U.S. branch or depository institution subsidiary of a foreign bank if the foreign bank fails to provide the written commitments, consent to U.S. jurisdiction, and designation of agent for service required by this section.
(b) The FDIC will consider the existence and extent of any prohibition or restrictions, if any, on its ability to utilize the commitments, consent to U.S. jurisdiction, and designation of agent for service required by this section, in determining whether to grant or deny a deposit insurance application for the U.S. branch or depository institution subsidiary of the foreign bank. In addition, the FDIC may consider any additional assurances or commitments provided by the foreign bank, including that it will cooperate and assist the FDIC, without limitation, by seeking to obtain waivers and exemptions from applicable confidentiality or secrecy restrictions or requirements to enable the foreign bank or its affiliates to make information about the foreign bank and its affiliates located outside of the United States available to the FDIC for review.
(c) The foreign bank's commitments, consent to U.S. jurisdiction, and designation of agent for service shall be signed by an officer of the foreign bank who has been so authorized by the foreign bank's board of directors and in all instances will be executed in a manner acceptable to the FDIC and shall be included with the branch or
The records of each insured branch shall be kept as though it were a separate entity, with its assets and liabilities separate from the other operations of the head office, other branches or agencies of the foreign bank and its subsidiaries or affiliates. Each insured branch must keep a set of accounts and records in the words and figures of the English language that accurately reflects the business transactions of the insured branch on a daily basis. A foreign bank that has more than one insured branch in a state may treat such insured branches as one entity for record-keeping purposes and may designate one branch to maintain records for all the branches in the state.
(a) Domestic retail deposit activity. To initiate or conduct domestic retail deposit activity requiring deposit insurance protection in any state after December 19, 1991, a foreign bank must establish one or more insured U.S. bank subsidiaries for that purpose.
(b) Exception. Paragraph (a) of this section does not apply to any bank organized under the laws of any territory of the United States, Puerto Rico, Guam, American Samoa, or the Virgin Islands the deposits of which are insured by the FDIC pursuant to the Federal Deposit Insurance Act.
(c) Grandfathered insured branches. Domestic retail deposit accounts with balances of less than $100,000 that require deposit insurance protection may be accepted or maintained in an insured branch of a foreign bank only if such branch was an insured branch on December 19, 1991.
(d) Change in ownership of grandfathered insured branch. The grandfathered status of an insured branch may not be transferred, except in certain merger and acquisition transactions that the FDIC determines are not designed, or motivated by the desire, to avoid compliance with section 6(d)(1) of the International Banking Act (12 U.S.C. 3104(d)(1)).
(a) Disclosure by the FDIC. The FDIC may disclose information obtained in the course of exercising its supervisory or examination authority to a foreign bank regulatory or supervisory authority, if the FDIC determines that disclosure is appropriate for bank supervisory or regulatory purposes and will not prejudice the interests of the United States.
(b) Confidentiality. Before making any disclosure of information pursuant to paragraph (a) of this section, the FDIC will obtain, to the extent necessary, the agreement of the foreign bank regulatory or supervisory authority to maintain the confidentiality of such information to the extent possible under applicable law. The disclosure or transfer of information to a foreign bank regulatory or supervisory authority under this section will not waive any privilege applicable to the information that is disclosed or transferred.
Deposits in an insured branch to the credit of the foreign bank or any of its offices, branches, agencies, or wholly owned subsidiaries may be deducted from the assessment base of the insured branch.
(a) Purpose. A foreign bank that has an insured branch must pledge assets for the benefit of the FDIC or its designee(s). Whenever the FDIC is obligated under section 11(f) of the Federal Deposit Insurance Act (12 U.S.C. 1821(f)) to pay the insured deposits of an insured branch, the assets pledged under this section must become the property of the FDIC and be used to the extent necessary to protect the deposit insurance fund.
(b) Amount of assets to be pledged. (1) For a newly insured branch, a foreign bank must pledge assets equal to at least 5 percent of the liabilities of the branch, based on the branch's projection of its liabilities at the end of each of the first three years of operations. For all other insured branches, a foreign bank must pledge assets equal to the appropriate percentage applicable to the insured branch, as determined by reference to the risk-based assessment schedule contained in this paragraph, of the insured branch's average liabilities for the last 30 days of the most recent calendar quarter.
(2) Risk-based assessment schedule. The risk-based asset pledge required by paragraph (b)(1) will be determined by utilizing the following risk-based assessment schedule:
The appropriate asset pledge percentage will be determined based on the supervisory risk subgroup and asset maintenance level applicable to the insured branch.
(3) Supervisory risk factors. For purposes of this section, within each asset maintenance group, each institution will be assigned to one of three subgroups based on consideration by the FDIC of supervisory evaluations provided by the primary federal regulator for the insured branch. The supervisory evaluations include the results of examination findings by the primary federal regulator, as well as other information the primary federal regulator determines to be relevant. In addition, the FDIC will take into consideration such other information (such as state examination findings, if appropriate) as it determines to be relevant to the financial condition and the risk posed to the deposit insurance fund. The three supervisory subgroups are:
(i) Subgroup “A”. This subgroup consists of financially sound institutions with only a few minor weaknesses;
(ii) Subgroup “B”. This subgroup consists of institutions that demonstrate weaknesses which, if not corrected, could result in significant deterioration of the institution and increased risk of loss to the deposit insurance fund; and
(iii) Subgroup “C”. This subgroup consists of institutions that pose a substantial probability of loss to the deposit insurance fund.
(4) The FDIC may require a foreign bank to pledge additional assets or to compute its pledge on a daily basis whenever the FDIC determines that the condition of the foreign bank or the insured branch is such that the assets pledged under this section will not adequately protect the deposit insurance fund. In requiring a foreign bank to pledge additional assets, the FDIC will consult with the primary regulator for the insured branch. Among the factors to be considered in imposing these requirements are the concentration of risk to any one borrower or group of related borrowers, the concentration of transfer risk related to any one country, including the country in which the foreign bank's head office is located or any other factor the FDIC determines is relevant.
(5) Each insured branch must separately comply with the requirements of this section. A foreign bank which has more than one insured branch in a state may, however, treat all of its insured branches in the same state as one entity and will designate one insured branch to be responsible for compliance with this section.
(c) Depository. A foreign bank must place pledged assets for safekeeping at any depository which is located in any state. However, a depository may not be an affiliate of the foreign bank whose insured branch is seeking to use the depository. A foreign bank must obtain the FDIC's prior written approval of the depository selected, and such approval may be revoked and dismissal of the depository required whenever the depository does not fulfill any one of its obligations under the pledge agreement. A foreign bank shall appoint and constitute the depository as its attorney in fact for the sole purpose of transferring title to pledged assets to the FDIC as may be required to effectuate the provisions of paragraph (a) of this section.
(d) Assets that may be pledged. Subject to the right of the FDIC to require substitution, a foreign bank may pledge any of the kinds of assets listed in this paragraph (d); such assets must be denominated in United States dollars. A foreign bank shall be deemed to have pledged any such assets for the benefit of the FDIC or its designee at such time as any such asset is placed with the depository, as follows:
(1)(i) Negotiable certificates of deposit that are payable in the United States and that are issued by any state bank, national bank, state or federal savings association, or branch of a foreign bank which has executed a valid waiver of offset agreement or similar debt instruments that are payable in the United States and that are issued by any agency of a foreign bank which has executed a valid waiver of offset agreement; provided, that the maturity of any certificate or issuance is not greater than one year; and provided further, that the issuing branch or agency of a foreign bank is not an affiliate of the pledging bank or from the same country as the pledging bank's domicile;
(ii) Non-negotiable certificates of deposit, subject to the terms specified in paragraph (d)(1)(i) of this section other than the requirement of negotiability, that were pledged as collateral to the FDIC on March 18, 2005, until maturity according to the original terms of the existing deposit agreement.
(2) Treasury bills, interest bearing bonds, notes, debentures, or other direct obligations of or obligations fully guaranteed as to principal and interest by the United States or any agency or instrumentality thereof;
(3) Commercial paper that is rated P-1 or P-2, or their equivalent by a nationally recognized rating service; provided, that any conflict in a rating shall be resolved in favor of the lower rating;
(4) Banker's acceptances that are payable in the United States and that are issued by any state bank, national bank, state or federal savings association, or branch or agency of a foreign bank; provided, that the maturity of any acceptance is not greater than 180 days; and provided further, that the branch or agency issuing the acceptance is not an affiliate of the pledging bank or from the same country as the pledging bank's domicile;
(5) General obligations of any state of the United States, or any county or municipality of any state of the United States, or any agency, instrumentality, or political subdivision of the foregoing or any obligation guaranteed by a state of the United States or any county or municipality of any state of the United States; provided, that such obligations have a credit rating within the top two rating bands of a nationally recognized rating service (with any conflict in a rating resolved in favor of the lower rating);
(6) Obligations of the African Development Bank, Asian Development Bank, Inter-American Development Bank, and the International Bank for Reconstruction and Development;
(7) Notes issued by bank and thrift holding companies, banks, or savings associations organized under the laws of the United States or any state thereof or notes issued by United States branches or agencies of foreign banks, provided, that the notes have a credit rating within the top two rating bands of a nationally recognized rating service (with any conflict in a rating resolved in favor of the lower rating) and that they are payable in the United States, and provided further, that the issuer is not an affiliate of the foreign bank pledging the note; or
(8) Any other asset determined by the FDIC to be acceptable.
(e) Pledge agreement. A foreign bank shall not pledge any assets unless a pledge agreement in form and substance satisfactory to the FDIC has been executed by the foreign bank and the depository. The agreement, in addition to other terms not inconsistent with this paragraph (e), shall give effect to the following terms:
(1) Original pledge. The foreign bank shall place with the depository assets of the kind described in paragraph (d) of this section, having an aggregate value in the amount as required pursuant to paragraph (b) of this section.
(2) Additional assets required to be pledged. Whenever the foreign bank is required to pledge additional assets for the benefit of the FDIC or its designees pursuant to paragraph (b)(4) of this section, it shall deliver (within two business days after the last day of the most recent calendar quarter, unless otherwise ordered) additional assets of the kind described in paragraph (d) of this section, having an aggregate value in the amount required by the FDIC.
(3) Substitution of assets. The foreign bank, at any time, may substitute any assets for pledged assets, and, upon such substitution, the depository shall promptly release any such assets to the foreign bank; provided, that:
(i) The foreign bank pledges assets of the kind described in paragraph (d) of this section having an aggregate value not less than the value of the pledged assets for which they are substituted and certified as such by the foreign bank; and
(ii) The FDIC has not by written notification to the foreign bank, a copy of which shall be provided to the depository, suspended or terminated the foreign bank's right of substitution.
(4) Delivery of other documents. Concurrently with the pledge of any assets, the foreign bank will deliver to the depository all documents and instruments necessary or advisable to effectuate the transfer of title to any such assets and thereafter, from time to time, at the request of the FDIC, deliver to the depository any such additional documents or instruments. The foreign bank shall provide copies of all such documents described in this paragraph (e)(4) to the appropriate regional director concurrently with their delivery to the depository.
(5) Acceptance and safekeeping responsibilities of the depository. (i) The depository will accept and hold any assets pledged by the foreign bank pursuant to the pledge agreement for safekeeping free and clear of any lien, charge, right of offset, credit, or preference in connection with any claim the depository may assert against the foreign bank and shall designate any such assets as a special pledge for the benefit of the FDIC or its designee. The depository shall not accept the pledge of any such assets unless, concurrently with such pledge, the foreign bank delivers to the depository the documents and instruments necessary for the transfer of title thereto as provided in this part.
(ii) The depository shall hold any such assets separate from all other assets of the foreign bank or the depository. Such assets may be held in book-entry form but must at all times be segregated on the records of the depository and clearly identified as assets subject to the pledge agreement.
(6) Reporting requirements of the insured branch and the depository. (i) Initial reports. Upon the original pledge of assets as provided in paragraph (e)(1) of this section:
(A) The depository shall provide to the foreign bank and to the appropriate FDIC regional director a written report in the form of a receipt identifying each asset pledged and specifying in reasonable detail with respect to each such asset the complete title, interest rate, series, serial number (if any), principal amount (par value), maturity date and call date; and
(B) The foreign bank shall provide to the appropriate regional director a written report certified as correct by the foreign bank which sets forth the value of each pledged asset and the aggregate value of all such assets, and which states that the aggregate value of all such assets is at least equal to the amount required pursuant to paragraph (b) of this section and that all such assets are of the kind described in paragraph (d) of this section.
(ii) Quarterly reports. Within ten calendar days after the end of the most recent calendar quarter:
(A) The depository shall provide to the appropriate regional director a written report specifying in reasonable detail with respect to each asset currently pledged (including any asset pledged to satisfy the requirements of paragraph (b)(4) of this section and identified as such), as of two business days after the end of the most recent calendar quarter, the complete title, interest rate, series, serial number (if any), principal amount (par value), maturity date, and call date, provided, that if no substitution of any asset has occurred during the reporting period, the reporting need only specify that no substitution of assets has occurred; and
(B) The foreign bank shall provide as of two business days after the end of the most recent calendar quarter to the appropriate regional director a written report certified as correct by the foreign bank which sets forth the value of each pledged asset and the aggregate value of all such assets, which states that the aggregate value of all such assets is at least equal to the amount required pursuant to paragraph (b) of this section and that all such assets are of the kind described in paragraph (d) of this section, and which states the average of the liabilities of each insured branch of the foreign bank computed in the manner and for the period prescribed in paragraph (b) of this section.
(iii) Additional reports. The foreign bank shall, from time to time, as may be required, provide to the appropriate regional director a written report in the form specified containing the information requested with respect to any asset then currently pledged.
(7) Access to assets. With respect to any asset pledged pursuant to the pledge agreement, the depository will provide representatives of the FDIC or the foreign bank with access (during regular business hours of the depository and at the location where any such asset is held, without other limitation or qualification) to all original instruments, documents, books, and records evidencing or pertaining to any such asset.
(8) Release upon the order of the FDIC. The depository shall release to the foreign bank any pledged assets, as specified in a written notification of the appropriate regional director, upon the terms and conditions provided in such notification, including without limitation the waiver of any requirement that any assets be pledged by the foreign bank in substitution of any released assets.
(9) Release to the FDIC. Whenever the FDIC is obligated under section 11(f) of the Federal Deposit Insurance Act to pay insured deposits of an insured branch, the FDIC by written certification shall so inform the depository; and the depository, upon receipt of such certification, shall thereupon promptly release and transfer title to any pledged assets to the FDIC or release such assets to the foreign bank, as specified in the certification. Upon release and transfer of title to all pledged assets specified in the certification, the depository shall be discharged from any further obligation under the pledge agreement.
(10) Interest earned on assets. The foreign bank may retain any interest earned with respect to the assets currently pledged unless the FDIC by written notice prohibits retention of interest by the foreign bank, in which case the notice shall specify the disposition of any such interest.
(11) Expenses of agreement. The FDIC shall not be required to pay any fees, costs, or expenses for services provided by the depository to the foreign bank pursuant to, or in connection with, the pledge agreement.
(12) Substitution of depository. The depository may resign, or the foreign bank may discharge the depository, from its duties and obligations under the pledge agreement by giving at least 60 days' written notice thereof to the other party and to the appropriate regional director. The FDIC, upon 30 days' written notice to the foreign bank and the depository, may require the foreign bank to dismiss the depository if the FDIC in its discretion determines that the depository is in breach of the pledge agreement. The depository shall continue to function as such until the appointment of a successor depository becomes effective and the depository has released to the successor depository the pledged assets and documents and instruments to effectuate transfer of title in accordance with the written instructions of the foreign bank as approved by the FDIC. The appointment by the foreign bank of a successor depository shall not be effective until:
(i) The FDIC has approved in writing the successor depository; and
(ii) A pledge agreement in form and substance satisfactory to the FDIC has been executed.
(13) Waiver of terms. The FDIC may by written order waive compliance by the foreign bank or the depository with any term or condition of the pledge agreement.
(a) An insured branch of a foreign bank shall maintain on a daily basis
(b) In determining eligible assets for the purposes of compliance with paragraph (a) of this section, the insured branch shall exclude the following:
(1) Any asset due from the foreign bank's head office, or its other branches, agencies, offices or affiliates;
(2) Any asset classified “Value Impaired,” to the extent of the required Allocated Transfer Risk Reserves or equivalent write down, or “Loss” in the most recent state or federal examination report;
(3) Any deposit of the insured branch in a bank unless the bank has executed a valid waiver of offset agreement;
(4) Any asset not supported by sufficient credit information to allow a review of the asset's credit quality, as determined at the most recent state or federal examination, as follows:
(i) Whether an asset has sufficient credit information will be a function of the size of the borrower and the location within the foreign bank of the responsibility for authorizing and monitoring extensions of credit to the borrower. For large, well known companies, when credit responsibility is located in an office of the foreign bank outside the insured branch, the insured branch must have adequate documentation to show that the asset is of good quality and is being supervised adequately by the foreign bank. In such cases, copies of periodic memoranda that include an analysis of the borrower's recent financial statements and a report on recent developments in the borrower's operations and borrowing relationships with the foreign bank generally would constitute sufficient information. For other borrowers, periodic memoranda must be supplemented by information such as copies of recent financial statements, recent correspondence concerning the borrower's financial condition and repayment history, credit terms and collateral, data on any guarantors, and where necessary, the status of any corrective measures being employed;
(ii) Subsequent to the determination that an asset lacks sufficient credit information, an insured branch may not include the amount of that asset among eligible assets until the FDIC determines that sufficient documentation exists. Such a determination may be made either at the next federal examination, or upon request of the insured branch, by the appropriate regional director;
(5) Any asset not in the insured branch's actual possession unless the insured branch holds title to such asset and the insured branch maintains records sufficient to enable independent verification of the insured branch's ownership of the asset, as determined at the most recent state or federal examination;
(6) Any intangible asset;
(7) Any other asset not considered bankable by the FDIC.
(c) A foreign bank which has more than one insured branch in a state may treat all of its insured branches in the same state as one entity for purposes of compliance with paragraph (a) of this section and shall designate one insured branch to be responsible for maintaining the records of the insured branches' compliance with this section.
(d) The average book value of the insured branch's liabilities for a quarter shall be, at the insured branch's option, either an average of the balances as of the close of business for each day of the quarter or an average of the balances as of the close of business on each Wednesday during the quarter. Quarters end on March 31, June 30, September 30, and December 31 of any given year. For days on which the insured branch is closed, balances from the previous business day are to be used. Calculations of the average book value of the insured branch's liabilities for a quarter shall be retained by the insured branch until the next federal examination.
(a) Frequency of on-site examination. Each branch or agency of a foreign bank shall be examined on-site at least once during each 12-month period (beginning on the date the most recent examination of the office ended) by:
(1) The FRB;
(2) The FDIC, if an insured branch;
(3) The OCC, if the branch or agency of the foreign bank is licensed by the OCC; or
(4) The state supervisor, if the office of the foreign bank is licensed or chartered by the state.
(b) 18-month cycle for certain small institutions. (1) Mandatory standards. The FDIC may conduct a full-scope, on-site examination at least once during each 18-month period, rather than each 12-month period as provided in paragraph (a) of this section, if the insured branch:
(i) Has total assets of $250 million or less;
(ii) Has received a composite ROCA supervisory rating (which rates risk management, operational controls, compliance, and asset quality) of 1 or 2 at its most recent examination;
(iii) Satisfies the requirement of either the following paragraph (b)(iii)(A) or (B):
(A) The foreign bank's most recently reported capital adequacy position consists of, or is equivalent to, Tier 1 and total risk-based capital ratios of at least 6 percent and 10 percent, respectively, on a consolidated basis; or
(B) The insured branch has maintained on a daily basis, over the past three quarters, eligible assets in an amount not less than 108 percent of the preceding quarter's average third party liabilities (determined consistent with applicable federal and state law) and sufficient liquidity is currently available to meet its obligations to third parties;
(iv) Is not subject to a formal enforcement action or order by the FRB, FDIC, or the OCC; and
(v) Has not experienced a change in control during the preceding 12-month period in which a full-scope, on-site examination would have been required but for this section.
(2) Discretionary standards. In determining whether an insured branch that meets the standards of paragraph (b)(1) of this section should not be eligible for an 18-month examination cycle pursuant to this paragraph (b), the FDIC may consider additional factors, including whether:
(i) Any of the individual components of the ROCA supervisory rating of an insured branch is rated “3” or worse;
(ii) The results of any off-site monitoring indicate a deterioration in the condition of the insured branch;
(iii) The size, relative importance, and role of a particular insured branch when reviewed in the context of the foreign bank's entire U.S. operations otherwise necessitate an annual examination; and
(iv) The condition of the parent foreign bank gives rise to such a need.
(c) Authority to conduct more frequent examinations. Nothing in paragraphs (a) and (b) of this section limits the authority of the FDIC to examine any insured branch as frequently as it deems necessary.
(a) Scope. A foreign bank operating an insured state branch which desires to engage in or continue to engage in any type of activity that is not permissible for a federal branch, pursuant to the National Bank Act (12 U.S.C. 21
(b) Exceptions. If the FDIC has already determined, pursuant to part 362 of this chapter, “Activities and Investment of Insured State Banks,” that an activity does not present a significant risk to the affected deposit insurance fund, no application is required under paragraph (a) of this section for a foreign bank operating an insured branch to engage or continue to engage in the same activity.
(c) Agency activities. A foreign bank operating an insured state branch is not required to submit an application pursuant to paragraph (a) of this section to engage in or continue engaging in an activity conducted as agent if the activity is:
(1) permissible agency activity for a state-chartered bank located in the state which the state-licensed insured branch of the foreign bank is located;
(2) permissible agency activity for a state-licensed branch of a foreign bank located in that state; and
(3) permissible pursuant to any other applicable federal law or regulation.
(d) Conditions of approval. (1) Approval of such an application required by paragraph (a) of this section may be conditioned on the agreement by the foreign bank and its insured state branch to conduct the activity subject to specific limitations, which may include pledging of assets in excess of the asset pledge and asset maintenance requirements contained in §§ 347.209 and 347.210.
(2) In the case of an application to initially engage in an activity, as opposed to an application to continue to conduct an activity, the insured state branch shall not commence the activity until it has been approved in writing by the FDIC pursuant to this part and the FRB, and any and all conditions imposed in such approvals have been satisfied.
(e) Divestiture or cessation. (1) If an application for permission to continue to conduct an activity is not approved by the FDIC or the FRB, the applicant shall submit a plan of divestiture or cessation of the activity to the appropriate regional director.
(2) A foreign bank operating an insured state branch which elects not to apply to the FDIC for permission to continue to conduct an activity which is rendered impermissible by any change in statute, regulation, official bulletin or circular, written order or interpretation, or decision of a court of competent jurisdiction shall submit a plan of divestiture or cessation to the appropriate regional director.
(3) All plans of divestitures or cessation required by this paragraph must be completed within one year from the date of the disapproval, or within such shorter period as the FDIC may direct.
(f) Procedures. Procedures for applications under this section are set out in section 303.187.
(a) A foreign bank may establish or operate a state branch, as provided by state law, without federal deposit insurance whenever:
(1) The branch only accepts initial deposits in an amount of $100,000 or greater; or
(2) The branch meets the criteria set forth in §§ 347.214 or 347.215.
(b) [Reserved]
A foreign bank may operate any state branch as a noninsured branch whenever the foreign bank has entered into an agreement with the FRB to accept at that branch only those deposits as would be permissible for a corporation organized under section 25(a) of the Federal Reserve Act (12 U.S.C. 611
(a) Deposit activities not requiring insurance. A state branch will not be considered to be engaged in domestic retail deposit activity that requires the foreign bank parent to establish an insured U.S. bank subsidiary if the state branch accepts initial deposits only in an amount of less than $100,000 that are derived solely from the following:
(1) Individuals who are not citizens or residents of the United States at the time of the initial deposit;
(2) Individuals who:
(i) Are not citizens of the United States;
(ii) Are residents of the United States; and
(iii) Are employed by a foreign bank, foreign business, foreign government, or recognized international organization;
(3) Persons (including immediate family members of natural persons) to whom the branch or foreign bank (including any affiliate thereof) has extended credit or provided other nondeposit banking services within the past twelve months or has entered into a written agreement to provide such services within the next twelve months;
(4) Foreign businesses, large United States businesses, and persons from whom an Edge or agreement corporation may accept deposits under 12 CFR 211.6(a)(1);
(5) Any governmental unit, including the United States government, any state government, any foreign government and any political subdivision or agency of any of the foregoing, and recognized international organizations;
(6) Persons who are depositing funds in connection with the issuance of a financial instrument by the branch for the transmission of funds or the transmission of such funds by any electronic means; and
(7) Any other depositor, but only if:
(i) The branch's average deposits under this paragraph (a)(7) do not exceed one percent of the branch's average total deposits, as calculated under paragraph (a)(7)(ii) if this section (
(ii) For purposes of calculating this exception:
(A) The branch's average deposits under this paragraph and the average total deposits must be computed by summing the close of business figures for each of the last 30 calendar days, ending with and including the last day of the calendar quarter, and dividing the resulting sum by 30;
(B) For days on which the branch is closed, balances from the last previous business day are to be used;
(C) The branch may exclude deposits in the branch of other offices, branches,
(D) The branch must not solicit deposits from the general public by advertising, display of signs, or similar activity designed to attract the attention of the general public; and
(E) A foreign bank that has more than one state branch in the same state may aggregate deposits in such branches (excluding deposits of other branches, agencies or wholly owned subsidiaries of the bank) for the purpose of this paragraph (a)(7).
(b) Application for an exemption. (1) Whenever a foreign bank proposes to accept at a state branch initial deposits of less than $100,000 and such deposits are not otherwise exempted under paragraph (a) of this section, the foreign bank may apply to the FDIC for consent to operate the branch as a noninsured branch. The Board of Directors may exempt the branch from the insurance requirement if the branch is not engaged in domestic retail deposit activities requiring insurance protection. The Board of Directors will consider the size and nature of depositors and deposit accounts, the importance of maintaining and improving the availability of credit to all sectors of the United States economy, including the international trade finance sector of the United States economy, whether the exemption would give the foreign bank an unfair competitive advantage over United States banking organizations, and any other relevant factors in making this determination.
(2) Procedures for applications under this section are set out in § 303.186.
(c) Transition period. A noninsured state branch may maintain a retail deposit lawfully accepted prior to April 1, 1996 pursuant to regulations in effect prior to July 1, 1998:
(1) If the deposit qualifies pursuant to paragraph (a) or (b) of this section; or
(2) If the deposit does not qualify pursuant to paragraph (a) or (b) of this section, in the case of a time deposit, no later than the first maturity date of the time deposit after April 1, 1996.
Any state branch that is exempt from the insurance requirement pursuant to § 347.215 shall:
(a) Display conspicuously at each window or place where deposits are usually accepted a sign stating that deposits are not insured by the FDIC; and
(b) Include in bold face conspicuous type on each signature card, passbook, and instrument evidencing a deposit the statement “This deposit is not insured by the FDIC”; or require each depositor to execute a statement which acknowledges that the initial deposit and all future deposits at the branch are not insured by the FDIC. This acknowledgment shall be retained by the branch so long as the depositor maintains any deposit with the branch. This provision applies to any negotiable certificates of deposit made in a branch on or after July 6, 1989, as well as to any renewals of such deposits which become effective on or after July 6, 1989.
By order of the Board of Directors.
Fish and Wildlife Service, Interior.
Proposed rule; availability of supplemental information.
The U.S. Fish and Wildlife Service (hereinafter the Service or we) proposes to establish annual hunting regulations for certain migratory game birds for the 2005-06 hunting season. We annually prescribe outside limits (frameworks) within which States may select hunting seasons. This proposed rule provides the regulatory schedule, describes the proposed regulatory alternatives for the 2005-06 duck hunting seasons, requests proposals from Indian tribes that wish to establish special migratory game bird hunting regulations on Federal Indian reservations and ceded lands, and requests proposals for the 2006 spring/summer migratory bird subsistence season in Alaska. Migratory game bird hunting seasons provide hunting opportunities for recreation and sustenance, aid Federal, State, and tribal governments in the management of migratory game birds, and permit harvests at levels compatible with migratory game bird population status and habitat conditions.
You must submit comments on the proposed regulatory alternatives for the 2005-06 duck hunting seasons by May 1, 2005. Following later
Send your comments on the proposals to the Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, Department of the Interior, MS MBSP-4107-ARLSQ, 1849 C Street, NW., Washington, DC 20240. All comments received, including names and addresses, will become part of the public record. You may inspect comments during normal business hours in room 4107, Arlington Square Building, 4501 North Fairfax Drive, Arlington, Virginia. Proposals for the 2006 spring/summer migratory bird subsistence season in Alaska should be sent to the Executive Director of the Co-management Council, U.S. Fish and Wildlife Service, 1011 E. Tudor Road, Anchorage, AK 99503, or fax to (907) 786-3306 or e-mail to
Ron W. Kokel, at: Division of Migratory Bird Management, U.S. Fish and Wildlife Service, Department of the Interior, MS MBSP-4107-ARLSQ, 1849 C Street, NW, Washington, DC 20240, (703) 358-1714. For information on the migratory bird subsistence season in Alaska, contact Fred Armstrong, (907) 786-3887, or Donna Dewhurst, (907) 786-3499, U.S. Fish and Wildlife Service, 1011 E. Tudor Road, Mail Stop 201, Anchorage, AK 99503.
Migratory game birds are those bird species so designated in conventions between the United States and several foreign nations for the protection and management of these birds. Under the Migratory Bird Treaty Act (16 U.S.C. 703-712), the Secretary of the Interior is authorized to determine when “hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any * * * bird, or any part, nest, or egg” of migratory game birds can take place, and to adopt regulations for this purpose. These regulations are written after giving due regard to “the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds” and are updated annually (16 U.S.C. 704(a)). This responsibility has been delegated to the U.S. Fish and Wildlife Service (Service) of the Department of the Interior as the lead Federal agency for managing and conserving migratory birds in the United States.
The Service develops migratory game bird hunting regulations by establishing the frameworks, or outside limits, for season lengths, bag limits, and areas for migratory game bird hunting. Acknowledging regional differences in hunting conditions, the Service has administratively divided the nation into four Flyways for the primary purpose of managing migratory game birds. Each Flyway (Atlantic, Mississippi, Central, and Pacific) has a Flyway Council, a formal organization generally composed of one member from each State and Province in that Flyway. The Flyway Councils, established through the International Association of Fish and Wildlife Agencies (IAFWA), also assist in researching and providing migratory game bird management information for Federal, State, and Provincial Governments, as well as private conservation agencies and the general public.
The migratory game bird hunting regulations, located at 50 CFR part 20, are constrained by three primary factors. Legal and administrative considerations dictate how long the rulemaking process will last. Most importantly, however, the biological cycle of migratory game birds controls the timing of data-gathering activities and thus the dates on which these results are available for consideration and deliberation.
The process includes two separate regulations-development schedules, based on early and late hunting season regulations. Early hunting seasons pertain to all migratory game bird species in Alaska, Hawaii, Puerto Rico, and the Virgin Islands; migratory game birds other than waterfowl (
There are basically no differences in the processes for establishing either early or late hunting seasons. For each cycle, Service biologists gather, analyze, and interpret biological survey data and provide this information to all those involved in the process through a series of published status reports and presentations to Flyway Councils and other interested parties. Because the Service is required to take abundance of migratory game birds and other factors into consideration, the Service undertakes a number of surveys throughout the year in conjunction with Service Regional Offices, the Canadian Wildlife Service, and State and Provincial wildlife-management agencies. To determine the appropriate frameworks for each species, we consider factors such as population size and trend, geographical distribution, annual breeding effort, the condition of breeding and wintering habitat, the number of hunters, and the anticipated harvest.
After frameworks, or outside limits, are established for season lengths, bag limits, and areas for migratory game bird hunting, migratory game bird management becomes a cooperative effort of State and Federal governments. After Service establishment of final frameworks for hunting seasons, the States may select season dates, bag limits, and other regulatory options for the hunting seasons. States may always be more conservative in their selections than the Federal frameworks but never more liberal.
This notice announces our intent to establish open hunting seasons and daily bag and possession limits for certain designated groups or species of migratory game birds for 2005-06 in the contiguous United States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands, under §§ 20.101 through 20.107, 20.109, and 20.110 of subpart K of 50 CFR part 20.
For the 2005-06 migratory game bird hunting season, we will propose regulations for certain designated members of the avian families Anatidae (ducks, geese, and swans); Columbidae (doves and pigeons); Gruidae (cranes); Rallidae (rails, coots, moorhens, and gallinules); and Scolopacidae (woodcock and snipe). We describe these proposals under Proposed 2005-06 Migratory Game Bird Hunting Regulations (Preliminary) in this document. We published definitions of waterfowl flyways and mourning dove management units, as well as a description of the data used in and the factors affecting the regulatory process in the March 14, 1990,
This document is the first in a series of proposed, supplemental, and final rulemaking documents for migratory game bird hunting regulations. We will publish additional supplemental proposals for public comment in the
Specifically, two considerations compress the time for the rulemaking process: the need, on one hand, to establish final rules early enough in the summer to allow resource agencies to select and publish season dates and bag limits prior to the beginning of hunting seasons and, on the other hand, the lack of current status data on most migratory game birds until later in the summer. Because the regulatory process is strongly influenced by the times when information is available for consideration, we divide the regulatory process into two segments: early seasons and late seasons (further described and discussed under the
Major steps in the 2005-06 regulatory cycle relating to open public meetings and
All sections of this and subsequent documents outlining hunting frameworks and guidelines are organized under numbered headings. These headings are:
Later sections of this and subsequent documents will refer only to numbered items requiring your attention. Therefore, it is important to note that we will omit those items requiring no attention, and remaining numbered items will be discontinuous and appear incomplete.
We will publish final regulatory alternatives for the 2005-06 duck hunting seasons in early June. We will publish proposed early season frameworks in mid-July and late season frameworks in mid-August. We will publish final regulatory frameworks for early seasons on or about August 19, 2005, and those for late seasons on or about September 16, 2005.
The 1916 Convention for the Protection of Migratory Birds between the United States and Great Britain (for Canada) established a closed season for the taking of migratory birds between March 10 and September 1. Residents of northern Alaska and Canada traditionally harvested migratory birds for nutritional purposes during the spring and summer months. The governments of Canada, Mexico, and the United States recently amended the 1916 Convention and the subsequent 1936 Mexico Convention for the Protection of Migratory Birds and Game Mammals. The amended treaties provide for the legal subsistence harvest of migratory birds and their eggs in Alaska and Canada during the closed season.
On August 16, 2002, we published in the
This proposed rule calls for proposals for regulations that will expire on August 31, 2006, for the spring/summer subsistence harvest of migratory birds in Alaska. Each year, seasons will open on or after March 11 and close prior to September 1.
We will publish details of the Alaska spring/summer subsistence harvest proposals in later
(a)
(b)
(2) Alaska Native representatives may be appointed by the Co-management Council to attend meetings of one or more of the four Flyway Councils to discuss recommended regulations or other proposed management actions.
(c)
Because of the time required for review by us and the public, proposals from the Co-management Council for the 2006 spring/summer migratory bird subsistence harvest season must be submitted to the Flyway Councils and the Service by June 15, 2005, for Council comments and Service action at the late-season SRC meeting.
This proposed rulemaking contains the proposed regulatory alternatives for the 2005-06 duck hunting seasons. This proposed rulemaking also describes other recommended changes or specific preliminary proposals that vary from the 2004-05 final frameworks (see August 30, 2004,
For administrative purposes, this document consolidates the notice of intent to establish open migratory game bird hunting seasons, the request for tribal proposals, and the request for Alaska migratory bird subsistence seasons with the preliminary proposals for the annual hunting regulations-development process. We will publish the remaining proposed and final rulemaking documents separately. For inquiries on tribal guidelines and proposals, tribes should contact the following personnel:
Beginning with the 1985-86 hunting season, we have employed guidelines described in the June 4, 1985,
(1) On-reservation hunting by both tribal and nontribal members, with hunting by nontribal members on some reservations to take place within Federal frameworks, but on dates different from those selected by the surrounding State(s);
(2) On-reservation hunting by tribal members only, outside of usual Federal frameworks for season dates and length, and for daily bag and possession limits; and
(3) Off-reservation hunting by tribal members on ceded lands, outside of usual framework dates and season length, with some added flexibility in daily bag and possession limits.
In all cases, tribal regulations established under the guidelines must be consistent with the annual March 10 to September 1 closed season mandated by the 1916 Convention Between the United States and Great Britain (for Canada) for the Protection of Migratory Birds (Convention). The guidelines are applicable to those tribes that have reserved hunting rights on Federal Indian reservations (including off-reservation trust lands) and ceded lands. They also may be applied to the establishment of migratory game bird hunting regulations for nontribal members on all lands within the exterior boundaries of reservations where tribes have full wildlife management authority over such hunting, or where the tribes and affected States otherwise have reached
Tribes usually have the authority to regulate migratory game bird hunting by nonmembers on Indian-owned reservation lands, subject to our approval.
The question of jurisdiction is more complex on reservations that include lands owned by non-Indians, especially when the surrounding States have established or intend to establish regulations governing migratory bird hunting by non-Indians on these lands. In such cases, we encourage the tribes and States to reach agreement on regulations that would apply throughout the reservations. When appropriate, we will consult with a tribe and State with the aim of facilitating an accord. We also will consult jointly with tribal and State officials in the affected States where tribes may wish to establish special hunting regulations for tribal members on ceded lands. It is incumbent upon the tribe and/or the State to request consultation as a result of the proposal being published in the
One of the guidelines provides for the continuation of tribal members' harvest of migratory game birds on reservations where such harvest is a customary practice. We do not oppose this harvest, provided it does not take place during the closed season required by the Convention, and it is not so large as to adversely affect the status of the migratory game bird resource. Since the inception of these guidelines, we have reached annual agreement with tribes for migratory game bird hunting by tribal members on their lands or on lands where they have reserved hunting rights. We will continue to consult with tribes that wish to reach a mutual agreement on hunting regulations for on-reservation hunting by tribal members.
Tribes should not view the guidelines as inflexible. We believe that they provide appropriate opportunity to accommodate the reserved hunting rights and management authority of Indian tribes while also ensuring that the migratory game bird resource receives necessary protection. The conservation of this important international resource is paramount. Use of the guidelines is not required if a tribe wishes to observe the hunting regulations established by the State(s) in which the reservation is located.
Tribes that wish to use the guidelines to establish special hunting regulations for the 2005-06 migratory game bird hunting season should submit a proposal that includes:
(1) The requested migratory game bird hunting season dates and other details regarding the proposed regulations;
(2) Harvest anticipated under the proposed regulations;
(3) Methods that will be employed to measure or monitor harvest (mail-questionnaire survey, bag checks, etc.);
(4) Steps that will be taken to limit level of harvest, where it could be shown that failure to limit such harvest would seriously impact the migratory game bird resource; and
(5) Tribal capabilities to establish and enforce migratory game bird hunting regulations.
A tribe that desires the earliest possible opening of the migratory game bird season for nontribal members should specify this request in its proposal, rather than request a date that might not be within the final Federal frameworks. Similarly, unless a tribe wishes to set more restrictive regulations than Federal regulations will permit for nontribal members, the proposal should request the same daily bag and possession limits and season length for migratory game birds that Federal regulations are likely to permit the States in the Flyway in which the reservation is located.
We will publish details of tribal proposals for public review in later
Tribes should direct inquiries regarding the guidelines and proposals to the appropriate Service Regional Office listed above under the caption
The Department of the Interior's policy is, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, we invite interested persons to submit written comments, suggestions, or recommendations regarding the proposed regulations. Before promulgation of final migratory game bird hunting regulations, we will take into consideration all comments received. Such comments, and any additional information received, may lead to final regulations that differ from these proposals. We invite interested persons to participate in this rulemaking by submitting written comments to the address indicated under the caption
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There may also be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
You may inspect comments received on the proposed annual regulations during normal business hours at the Service's Division of Migratory Bird Management office in room 4107, 4501 North Fairfax Drive, Arlington, Virginia. For each series of proposed rulemakings, we will establish specific comment periods. We will consider, but possibly may not respond in detail to, each comment. As in the past, we will summarize all comments received during the comment period and respond to them after the closing date in any final rules.
NEPA considerations are covered by the programmatic document “Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-14),” filed with the Environmental Protection Agency on June 9, 1988. We published Notice of Availability in the
In a proposed rule published in the April 30, 2001,
Prior to issuance of the 2005-06 migratory game bird hunting regulations, we will comply with provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1543; hereinafter the Act), to ensure that hunting is not likely to jeopardize the continued existence of any species designated as endangered or threatened or modify or destroy its critical habitat and is consistent with conservation programs for those species. Consultations under Section 7 of this Act may cause us to change proposals in this and future supplemental proposed rulemaking documents.
The migratory bird hunting regulations are economically significant and were reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. As such, a cost/benefit analysis was initially prepared in 1981. This analysis was subsequently revised annually from 1990-96, updated in 1998 and updated again in 2004. It is further discussed below under the heading
Executive Order 12866 also requires each agency to write regulations that are easy to understand. We invite comments on how to make this rule easier to understand, including answers to questions such as the following:
(1) Are the requirements in the rule clearly stated?
(2) Does the rule contain technical language or jargon that interferes with its clarity?
(3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?
(4) Would the rule be easier to understand if it were divided into more (but shorter) sections?
(5) Is the description of the rule in the
(6) What else could we do to make the rule easier to understand?
Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street NW., Washington, DC 20240. You may also e-mail the comments to this address:
These regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule has an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808(1).
We examined these regulations under the Paperwork Reduction Act of 1995. The various recordkeeping and reporting requirements imposed under regulations established in 50 CFR part 20, Subpart K, are utilized in the formulation of migratory game bird hunting regulations. Specifically, OMB has approved the information collection requirements of the surveys associated with the Migratory Bird Harvest Information Program and assigned clearance number 1018-0015 (expires 2/29/2008). This information is used to provide a sampling frame for voluntary national surveys to improve our harvest estimates for all migratory game birds in order to better manage these populations. OMB has also approved the information collection requirements of the Sandhill Crane Harvest Survey and assigned clearance number 1018-0023 (expires 11/30/2007). The information from this survey is used to estimate the magnitude and the geographical and temporal distribution of the harvest, and the portion it constitutes of the total population. Lastly, OMB has approved the information collection requirements of the Alaska Subsistence Household Survey, an associated voluntary annual household survey used to determine levels of subsistence take in Alaska. The OMB control number for the information collection is 1018-0124 (expires 10/31/2006). A Federal 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.
We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502
The Department, in promulgating this proposed rule, has determined that this proposed rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
In accordance with Executive Order 12630, this proposed rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this proposed rule is a significant regulatory action under Executive Order 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and tribes to determine which seasons meet their individual needs. Any State or Indian tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with Executive Order 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
The rules that eventually will be promulgated for the 2005-06 hunting season are authorized under 16 U.S.C. 703-711, 16 U.S.C. 712, and 16 U.S.C. 742a-j.
Pending current information on populations, harvest, and habitat conditions, and receipt of recommendations from the four Flyway Councils, we may defer specific regulatory proposals. At this time, we are proposing no changes from the final 2004-05 frameworks established on August 30 and September 23, 2004 (69 FR 52970 and 57140). Other issues requiring early discussion, action, or the attention of the States or tribes are contained below:
Categories used to discuss issues related to duck harvest management are: (A) General Harvest Strategy, (B) Regulatory Alternatives, (C) Zones and Split Seasons, and (D) Special Seasons/Species Management. Only those containing substantial recommendations are discussed below.
We propose to continue use of adaptive harvest management (AHM) to help determine appropriate duck-hunting regulations for the 2005-06 season. AHM is a tool that permits sound resource decisions in the face of uncertain regulatory impacts, as well as providing a mechanism for reducing that uncertainty over time. The current AHM protocol is used to evaluate four alternative regulatory levels based on the population status of mallards (special hunting restrictions are enacted for species of special concern, such as canvasbacks, scaup, and pintails).
The prescribed regulatory alternative for the Mississippi, Central, and Pacific Flyways would be based on the status of mallards and breeding-habitat conditions in central North America (Federal survey strata 1-18, 20-50, and 75-77, and State surveys in Minnesota, Wisconsin, and Michigan). We propose to continue the constraint on closed seasons enacted in 2003. This constraint explicitly excludes from consideration closed hunting seasons in the Mississippi, Central, and Pacific Flyways whenever the mid-continent mallard population is at least 5.5 million. Closed seasons targeted at particular species or populations could still be necessary in some situations regardless of the status of mallards.
The prescribed regulatory alternative for the Atlantic Flyway would be based on the population status of mallards breeding in eastern North America (Federal survey strata 51-54 and 56, and State surveys in New England and the mid-Atlantic region) and, thus, may differ from that in the remainder of the country.
We will propose a specific regulatory alternative for each of the Flyways during the 2005-06 season after survey information becomes available in late summer. More information on AHM is located at
The basic structure of the current regulatory alternatives for AHM was adopted in 1997. The alternatives remained largely unchanged until 2002, when we (based on recommendations from the Flyway Councils) extended framework dates in the “moderate” and “liberal” regulatory alternatives by changing the opening date from the Saturday nearest October 1 to the Saturday nearest September 24, and changing the closing date from the Sunday nearest January 20 to the last Sunday in January. These extended dates were made available with no associated penalty in season length or bag limits. At that time we stated our desire to keep these changes in place for 3 years to allow for a reasonable opportunity to monitor the impacts of framework-date extensions on harvest distribution and rates of harvest prior to considering any subsequent use (67 FR 12501).
For 2004-05, we are proposing to maintain the same regulatory alternatives that were in effect last year (see accompanying table for specifics of the proposed regulatory alternatives). Alternatives are specified for each Flyway and are designated as “RES” for the restrictive, “MOD” for the moderate, and “LIB” for the liberal alternative. We will announce final regulatory alternatives in early June. Public comments will be accepted until May 1, 2005, and should be sent to the address under the caption
In 1990, because of concerns about the proliferation of zones and split seasons for duck hunting, a cooperative review and evaluation of the historical use of zone/split options was conducted. This review did not show that the proliferation of these options had increased harvest pressure; however, the ability to detect the impact of zone/split configurations was poor because of unreliable response variables, the lack of statistical tests to differentiate between real and perceived changes, and the absence of adequate
The next open season for changes to zone/split configurations will be in 2006, for the 2006-2010 period. In order to allow sufficient time for States to solicit public input regarding their selections of zone/split configurations in 2006, we will finalize the guidelines during the 2005 late-season regulations process. For the 2006-2010 period, we propose to continue with the guidelines used for 2001-2005. These are as follows:
The following zone/split-season guidelines apply only for the regular duck season:
1. A zone is a geographic area or portion of a State, with a contiguous boundary, for which independent dates may be selected for the regular duck season.
2. Consideration of changes for management-unit boundaries is not subject to the guidelines and provisions governing the use of zones and split seasons for ducks.
3. Only minor (less than a county in size) boundary changes will be allowed for any grandfather arrangement, and changes are limited to the open season.
4. Once a zone/split option is selected during an open season, it must remain in place for the following 5 years.
For the 2006-2010 period, any State may continue the configuration used in 2001-2005. If changes are made, the zone/split-season configuration must conform to one of the following options:
1. Three zones with no splits,
2. Split seasons (no more than 3 segments) with no zones, or
3. Two zones with the option for 2-way split seasons in one or both zones.
At the end of 5 years after any changes in splits or zones, States will be required to provide the Service with a review of pertinent data (
iii.
In the Pacific Flyway, the current status and population trend information for Cackling Canada geese suggest that regulatory changes may be warranted this year.
In the Pacific Flyway, the current status and population trend information for Pacific Black Brant suggest that regulatory changes may be warranted this year.
During last year's waterfowl and sandhill crane hunting season, a group of hunters in Kansas accidentally shot at some whooping cranes. Two of the whooping cranes from this flock sustained injuries and were subsequently captured and treated by agency and university personnel. One of these birds died soon after capture and the other was transported to a captive-rearing facility in Maryland, however this second bird also died as a result of injuries sustained in the shooting. Service staff are working with staff from the Kansas Department of Wildlife and Parks to review this incident and make recommendations to minimize the potential conflicts with whooping cranes and hunting in this area. Pending the outcome of these discussions, regulatory changes for the Mid-Continent Population of sandhill cranes may be proposed this year.