Animal and Plant Health Inspection Service
Economic Research Service
Forest Service
Rural Business-Cooperative Service
Engineers Corps
National Foundation on the Arts and the Humanities
Export Administration Bureau
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Engineers Corps
Federal Energy Regulatory Commission
Management and Budget Office
Centers for Disease Control and Prevention
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Fish and Wildlife Service
Land Management Bureau
National Park Service
Surface Mining Reclamation and Enforcement Office
Overseas Private Investment Corporation
Mine Safety and Health Administration
Pension and Welfare Benefits Administration
Management and Budget Office
Centers for Disease Control and Prevention
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Federal Aviation Administration
Maritime Administration
Research and Special Programs Administration
Surface Transportation Board
Transportation Statistics Bureau
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
Animal and Plant Health Inspection Service, USDA.
Affirmation of interim rule as final rule.
We are adopting as a final rule, without change, an interim rule that amended the pink bollworm regulations by removing the previously regulated area in Poinsett County, AR, from the list of suppressive areas for pink bollworm and by removing Arkansas from the list of States quarantined because of the pink bollworm. We took that action because trapping surveys showed that the pink bollworm no longer exists in this area, which was the only area in the State regulated because of pink bollworm. The interim rule relieved unnecessary restrictions on the interstate movement of regulated articles from the previously regulated area.
The interim rule became effective on March 2, 2000.
Mr. Bill Grefenstette, Assistant Director, Plant Health Programs, PPQ, APHIS, 4700 River Road Unit 138, Riverdale, MD 20737-1236; (301) 734-8676.
In an interim rule effective and published in the
Comments on the interim rule were required to be received on or before May 1, 2000. We did not receive any comments. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule.
This action also affirms the information contained in the interim rule concerning Executive Orders 12866, 12372, and 12988, and the Paperwork Reduction Act.
Further, for this action, the Office of Management and Budget has waived the review process required by Executive Order 12866.
This rule affirms an interim rule that amended the regulations by removing the previously regulated area in Poinsett County, AR, from the list of suppressive areas for pink bollworm and by removing Arkansas from the list of States quarantined because of the pink bollworm. We took that action because trapping surveys showed that the pink bollworm no longer exists in this area, which was the only area in the State regulated because of pink bollworm. The interim rule relieved unnecessary restrictions on the interstate movement of regulated articles from the previously regulated area.
The following analysis addresses the economic effect of this rule on small entities, as required by the Regulatory Flexibility Act.
Entities affected by this rule could be cotton and cottonseed farms, cotton harvesting businesses, cotton gins, cottonseed oil mills, and wholesale cotton merchants operating in the previously regulated area. Affected gins and growers no longer need to acquire a certificate or permit to move their cotton or cottonseed from the area. Other items that no longer require certificates or permits before movement include bags, harvesting equipment, cotton refuse, trucks, and trailers.
In 1997, when the area of Poinsett County affected by this rulemaking was listed as a suppressive area for pink bollworm, we determined that there were 4 cotton growers in the area who produced about 1,880 bales of cotton and 750 tons of cottonseed in 1995. Additionally, one cotton gin, two equipment companies, two transport companies, and one oil mill were identified as potentially affected small entities in the regulated area. In all cases, the economic effect of regulating the area was expected to be minimal because of the availability of treatments.
Affected entities are likely to receive some small benefit from our removing restrictions related to pink bollworm. From 1997 to 1999, the average price of cotton was about $296 per bale. The treatment cost for pink bollworm in 1997 ranged from $.64 to $2.47 per bale of cotton. Even if the average treatment price of $2.06 per bale had increased by 40 percent in the last 3 years, it would still represent less than 1 percent of the price of cotton. Similarly, for cottonseed, if the average 1997 treatment price of $.135 per bushel had increased by 20 percent in the last 3 years, it would still represent only about 1 percent of the price of cottonseed. The 10 affected entities in Poinsett County do not represent a substantial number of small entities given the tens of thousands of cotton producers and related businesses operating in the United States. Further, any economic effect of the rule on these entities is expected to be insignificant, given that the treatment costs are less than 1 percent of the value of the cotton and the cottonseed, and positive.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation.
Title IV, Pub. L. 106-224, 114 Stat. 438, 7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.
Federal Aviation Administration, DOT.
Final rule; request for comments.
This amendment adopts a new airworthiness directive (AD) that applies to certain Raytheon Aircraft Company (Raytheon) Models A65, A65-8200, 65-B80, 70, 95-A55, 95-B55, 95-C55, D55, E55, 56TC, A56TC, 58, 58P, 58TC, 95-B55B (T42A) airplanes. This AD requires replacement of certain elevator skin assemblies that Raytheon shipped from January 1, 1999, through December 31, 1999, and prevents the future installation of these elevator skin assemblies. This AD authorizes the pilot to check the logbooks to determine whether one of these elevator skin assemblies is installed. This AD is the result of reports that certain elevator skin assemblies did not receive a 250-degree Fahrenheit bake operation after corrosion treatment, thus making the skin susceptible to separation from the elevator assembly. The actions specified by this AD are intended to detect and correct potential elevator skin separation, which would lead to a reduction in static strength capability with continued operation. This could then result in potential airplane flutter with consequent loss of control of the airplane.
This AD becomes effective on September 22, 2000.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulation as of September 22, 2000.
The Federal Aviation Administration (FAA) must receive any comments on this rule on or before October 27, 2000.
Submit comments in triplicate to FAA, Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-CE-53-AD, 901 Locust, Room 506, Kansas City, Missouri 64106.
You may get the service information referenced in this AD from the Raytheon Aircraft Company, P.O. Box 85, Wichita, Kansas 67201-0085; telephone: (800) 429-5372 or (316) 676-3140. You may examine this information at FAA, Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-CE-53-AD, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Gary D. Park, Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Mid-Continent Airport, Wichita, Kansas 67209; telephone: (314) 946-4123; facsimile: (314) 946-4407.
The omission of this bake operation affects the strength of the adhesive bond. This could cause the skin to separate from the elevator assembly.
• Determining whether one of the affected elevator assemblies is installed;
• Accomplishing a tap test to determine the elevator skin bond integrity; and
• Replacing any elevator assembly that Raytheon delivered between January 1, 1999, and December 31, 1999.
• An unsafe condition exists or could develop on certain Raytheon Models A65, A65-8200, 65-B80, 70, 95-A55, 95-B55, 95-C55, D55, E55, 56TC, A56TC, 58, 58P, 58TC, and 95-B55B (T42A) airplanes of the same type design;
• The actions and procedures in the previously referenced service bulletin should be incorporated on these airplanes; and
• AD action should be taken in order to detect and correct potential elevator skin separation, which would lead to a reduction in static strength capability with continued operation. This could then result in potential airplane flutter with consequent loss of control of the airplane.
The FAA is reviewing the writing style we currently use in regulatory documents, in response to the Presidential memorandum of June 1, 1998. That memorandum requires federal agencies to communicate more clearly with the public. We are interested in your comments on whether the style of this document is clearer, and any other suggestions you might have to improve the clarity of FAA communications that affect you. You can get more information about the Presidential memorandum and the plain language initiative at http://www.plainlanguage.gov.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a)
(b)
(c)
(d)
(e)
(1) Your alternative method of compliance provides an equivalent level of safety; and
(2) The Manager, Wichita (ACO), approves your alternative. Submit your request through an FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Wichita ACO.
This AD applies to each airplane identified in paragraph (a) of this AD, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (e) 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 you have not eliminated the unsafe condition, specific actions you propose to address it.
(f)
(g)
(1) Pass the tap test inspection specified in Raytheon Mandatory Service Bulletin SB 27-3396, Rev. 1, Revised: June, 2000; and
(2) Restrict airspeed to maneuvering speed.
(h)
(i)
Federal Aviation Administration, DOT.
Final rule; request for comments.
This amendment adopts a new airworthiness directive (AD) that is applicable to Rolls-Royce plc models RB211-524D4-19, -524D4-B-19, -524D4-B-39, -524D4X-19, and 524D4X-B-19 turbofan engines with a cold stream nozzle assembly Part Number (PN) LJ32826 installed. This action requires inspection for cracks and repair of the cold stream nozzle assembly longitudinal flange. This amendment is prompted by a report of the loss of a large section of cold stream nozzle assembly in flight. The actions specified in this AD are intended to detect cracks that could result in failure of the cold stream nozzle assembly, possible release of cold stream nozzle debris from the engine, and possible damage to airplane control surfaces.
Effective September 22, 2000. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 22, 2000.
Comments for inclusion in the Rules Docket must be received on or before November 6, 2000.
Submit comments to the Federal Aviation Administration (FAA), New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-NE-23-AD, 12 New England Executive Park, Burlington, MA 01803-5299. Comments may also be sent via the Internet using the following address: “9-ane-adcomment@faa.gov”. Comments sent via the Internet must contain the docket number in the subject line.
The service information referenced in this AD may be obtained from Rolls-Royce plc, PO Box 31, Derby, England; telephone: International Access Code 011, Country Code 44, 1332-249428, fax: International Access Code 011, Country Code 44, 1332-249223. This information may be examined at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA; or at the Office of the Federal Register, 800 North Capitol Street, NW, suite 700, Washington, DC.
James Lawrence, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803-5299; telephone: (781)-238-7176, fax: (781)-238-7199.
The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom (UK), recently notified the Federal Aviation Administration (FAA) that an unsafe condition may exist on Rolls-Royce plc (RR) models RB211-524D4-19, -524D4-B-19, -524D4-B-39, -524D4X-19, and -524D4X-B-19 turbofan engines with cold stream nozzle assembly PN LJ32826 installed. The CAA received a report of a cold stream nozzle assembly release from an engine that struck wing fairings prior to falling away from the airplane. A subsequent investigation of the active fleet conducted by RR revealed 15 more instances of cracked cold stream nozzle assemblies at their longitudinal flange. The actions specified in this AD are intended to detect cracks that could result in failure of the cold stream nozzle assembly, possible release of cold stream nozzle debris from the engine, and possible damage to airplane control surfaces.
RR has issued Service Bulletin (SB No. RB.211-78-C955 Revision 1, dated June 20, 2000, which specifies procedures for inspection of cold stream nozzle assembly longitudinal flanges. The CAA classified these SB's as mandatory and issued AD 005-01-2000 in response to the original SB to assure the airworthiness of these engines in the UK. Revision 1 adds repeat inspection requirements to the original SB. These SB's also reference a Technical Variance Document that provides for repair of cold stream nozzle assemblies PN LJ32826 as optional terminating action for the inspections.
This engine model is manufactured in the UK 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. The FAA has examined the findings of the CAA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other engines of the same type design registered in the United States, this AD is being issued to require initial and repetitive inspections to detect cracks in the cold stream nozzle assembly and to provide instructions to repair those cracks if they are within acceptable limits. The actions would be required to be accomplished in accordance with the SB's described previously.
There are currently no domestic operators of this engine model. Accordingly, a situation exists that allows the immediate adoption of this regulation. Notice and opportunity for prior public comment hereon are unnecessary, and good cause exists for making this amendment effective in less than 30 days.
Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NE-23-AD.” The postcard will be date stamped and returned to the commenter.
This action 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 responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this proposal.
The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
This AD applies to each engine 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 engines that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (d) 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.
(a) Inspect cold stream nozzle assemblies for cracks within 60 days or 100 cycles-in-service (CIS) after the effective date of this AD, whichever is sooner, in accordance with the Accomplishment Instructions, Sections 3.A through 3.C.(3) of RR Service Bulletin (SB) RB.211-78-C955, Revision 1, dated June 20, 2000.
(b) Thereafter, inspect each nozzle assembly for cracks within 1400 CIS since last inspection in accordance with Accomplishment Instructions, Sections 3.A. through 3.C.(3) of RR SB RB.211-78-C955, Revision 1.
(c) Repair of cold stream nozzle assemblies PN LJ32826 on both left and right sides in accordance with RR SB RB.211-78-C955, Revision 1, dated June 20, 2000, is considered terminating action for the repetitive inspection requirements of this AD.
(d) 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, Engine Certification Office (ECO). Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, ECO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the ECO.
(e) Special flight permits may be issued in accordance with sections 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 accomplished.
(f) The actions required by this AD shall be performed in accordance with the following RR SB:
(g) This amendment becomes effective on September 22, 2000.
Federal Aviation Administration, DOT.
Final rule; request for comments.
This amendment adopts a new airworthiness directive (AD), that is applicable to Allison Engine Company AE 3007A and AE 3007C series turbofan engines with certain full authority digital electronic controls (FADEC's), listed by hardware serial number (SN), installed. This action requires inspections of installed FADEC's before further flight to be sure that no more than one engine with suspect FADEC's is installed on the same airplane, and eventual replacement of all of the suspect FADEC's with serviceable FADEC's. This amendment is prompted by reports of uncommanded in-flight shutdowns of engines. The actions specified in this AD are intended to prevent an uncommanded in-flight engine shutdown and the potential for an in-flight dual-engine shutdown caused by a potential hardware failure mode in some AE 3007 series FADEC's.
Effective September 22, 2000.
Comments for inclusion in the Rules Docket must be received on or before November 6, 2000.
Submit comments in triplicate to the Federal Aviation Administration (FAA), New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-NE-33-AD, 12 New England Executive Park, Burlington, MA 01803-5299. Comments may also be sent via the Internet using the following address: “9-ane-adcomment@faa.gov”. Comments sent via the Internet must contain the docket number in the subject line. The docket may be examined at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA.
Kyri Zaroyiannis, Aerospace Engineer, Chicago Aircraft Certification Office, FAA, Small Airplane Directorate, 2300 East Devon Avenue, Des Plaines, IL 60018; telephone (847) 294-7836, fax (847) 294-7834.
The Allison Engine Company has notified the FAA that there is a quality problem with FADEC's that have certain hardware SN's installed on AE 3007 series engines. This can lead to an uncommanded engine shutdown in flight, the inability of the FADECs to switch from one channel to another channel (channel A to B), or the inability to shutdown an engine. Three uncommanded in-flight engine shutdowns, eight events in which the FADEC channels could not be changed, and three events in which the engine could not be shut down prompted these actions. Allison Engine Company has determined that these events resulted from a quality problem with the internal power supply transistor TR1 in FADEC's with certain hardware SN's. This condition, if not corrected, could also result in an uncommanded in-flight engine shutdown and the potential for an in-flight dual-engine shutdown caused by a potential hardware failure mode in some AE 3007 series FADEC's.
The compliance times of this AD were chosen based on the risk analysis of a dual-engine shutdown. These compliance times assure the desired level of fleet safety of this action as a function of airplane utilization variations throughout the fleet.
Since an unsafe condition has been identified that is likely to exist or develop on other engines of the same type design, this AD is being issued to require inspection of FADEC's for suspect hardware SN's and, if necessary, removal of that FADEC before further flight. This is to be sure that no more than one engine with FADEC's that have suspect hardware SN's is installed on each airplane. This AD will also require the replacement of all FADEC's that have suspect hardware SN's with serviceable FADEC's within 3 months after the effective date of this AD.
Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.
Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NE-33-AD.” The postcard will be date stamped and returned to the commenter.
This proposed rule does not have federalism implications, as defined in Executive Order No. 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.
The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
49 U.S.C. 106(g), 40113, 44701.
These engines are installed on, but not limited to Embraer Model EMB-145, EMB-145ER, EMB-145MR, EMB-145LR, EMB-135ER, EMB-135LR, and Cessna 750 airplanes.
This airworthiness directive (AD) applies to each engine 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 engines that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (h) 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.
To prevent an uncommanded in-flight engine shutdown and the potential for an in-flight dual-engine shutdown, do the following:
(a) Before further flight, inspect the FADEC for a SN that is listed in “Applicability” of this AD to be sure that no airplane has more than one engine with FADEC's that have suspect hardware SN's. The engine may have two FADEC's that have suspect hardware SN's.
(b) If more than one engine per airplane is found with a FADEC that has a suspect hardware SN, remove the FADEC so there is only one engine per airplane with a FADEC that has a suspect hardware SN.
(c) Removed suspect FADEC's may be returned to local stock.
(d) The suspect FADEC's may be installed on another airplane as long as the requirements of paragraphs (a) and (e) of this AD are met.
(e) Replace all FADEC's that have suspect hardware SN's with serviceable FADEC's within 3 months after the effective date of this AD.
(f) After 3 months from the effective date of this AD, do not install a FADEC that has a hardware SN listed in “Applicability” of this AD on any engine unless the FADEC hardware has been repaired and the modification tag on the FADEC is marked with TR1 day/month. For example, a repair that was accomplished on September 25, 2000, will show as TR1 25/09.
(g) For the purpose of this AD, a serviceable FADEC is a FADEC that does not have a hardware SN listed in “Applicability” of this AD, unless the FADEC with the suspect hardware SN has been modified using Rolls-Royce (RR) service bulletin (SB) AE 3007A-73-042, Revision 1, dated August 23, 2000; or RR SB AE 3007C-73-024, Revision 1, dated August 23, 2000.
(h) An alternative method of compliance (AMOC) 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 shall 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 any approved AMOC with this airworthiness directive, may be obtained from the Chicago Aircraft Certification Office.
(i) 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 accomplished.
(j) This amendment becomes effective on September 22, 2000.
Food and Drug Administration, HHS.
Final rule; technical amendment.
The Food and Drug Administration (FDA) is updating the animal drug regulations to add Triple “F”, Inc., to the list of sponsors of approved animal drug applications, and to add the drug labeler code (DLC) number for ADM Animal Health & Nutrition Division (ADM) to the list of approvals for bambermycins. These corrections amend the animal drug regulations to reflect currently approved new animal drug applications (NADA's).
This rule is effective September 7, 2000.
Judith M. O'Haro, Center for Veterinary Medicine (HFV-6), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-3664.
FDA has found that the April 1, 2000, edition of Title 21, Parts 500 to 599 of the
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, Animal feeds.
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
(c) * * *
(1) * * *
(2) * * *
21 U.S.C. 360b, 371.
Bureau of Consular Affairs.
Final rule.
This final rule amends the Schedule of Fees for Consular Services. Specifically, it establishes a fee for the review of the Affidavit of Support (Form I-864), when submitted in support of an application for immigration to the United States.
The effective date for the new AOS fee is October 1, 2000. I-864 forms sent to petitioners by the National Visa Center (NVC) or by posts overseas after October 1, 2000, will be subject to the new AOS fee as stated below.
Office of the Executive Director, Bureau of Consular Affairs, Department of State, SA-1, 10th Floor, 2401 E Street, NW., Washington, DC 20522-0111; telefax (202) 663-2499.
Alcy Frelick, Office of the Executive Director, Bureau of Consular Affairs, Department of State, SA-1, 10th Floor, 2401 E Street, NW., Washington, DC 20522-0111; telefax (202) 663-2499; email address frelickar@state.gov.
The amendment to the Schedule of Fees was published as a proposed rule on March 13, 2000 (65 FR 13253-13254). During the 30-day public comment period, three written comments were received from the general public. Those comments are addressed below. For the reasons explained, the Department is setting the Affidavit of Support fee (AOS fee) at $50.00 as originally proposed, but will be making a change to the effective date of the rule to address concerns raised by the commenters.
The public comments received by the Department focused on two aspects of the proposed new AOS fee: (1) That only one AOS fee should be charged per immigrant visa case (
Because the revenue from this fee is to be used to recover the costs of providing assistance to sponsors, co-sponsors and joint sponsors completing the I-864 form in support of an application for immigration to the United States, the Department cannot concur in this recommendation. One AOS fee will be charged for each I-864 form filed by the sponsor/petitioner, but no additional fee will be charged for an I-864a form filed by a co-sponsor. However, an additional AOS fee will be assessed for each I-864 form filed by any joint sponsor, as each individual submitting the I-864 form could potentially require assistance in completing the form. The services will be available to any party requiring assistance regardless of whether the person is a primary or a joint sponsor. It should also be noted that no additional AOS fee will be assessed when essentially duplicative I-864 forms are submitted on behalf of beneficiaries of separate petitions (for example, for parents of a US citizen for whom separate petitions must be filed).
The Department initially proposed imposing a separate AOS fee for the primary and each joint I-864 form submitted on behalf of an immigrant visa applicant because each I-864 form must be reviewed separately for technical completeness and assessed separately when evaluating the applicant's eligibility vis-a-vis the public charge provision. The Department has reviewed this proposal in light of comments received and decided that averaging the costs of evaluating all I-864 forms into a single, uniform AOS fee per immigrant visa case would not be equitable for all applicants. Establishing a single AOS fee for an immigrant visa case would necessitate setting a higher fee to recover all the costs of the services provided and hence would result in all primary sponsors subsidizing a limited number of joint sponsors. Requiring payment of the AOS fee for each I-864 form submitted will also simplify the Department's fee collection procedures, thus reducing administrative costs.
In December 1998, the National Visa Center (NVC) established a pilot program (the AOS review program) to review the I-864 forms submitted for applicants applying at three posts—Ciudad Juarez, Manila and Santo Domingo. The Department undertook this review process to ensure that all I-864 forms sent to the pilot posts would be technically correct (the signatures properly notarized, the form completed, and all relevant supporting documentation attached). While the start-up period involved some delays, the process is now in place and functioning smoothly. The results of the pilot project have been positive with reduced refusal rates for the pilot posts. The I-864 forms submitted in support of immigrant visa applications at those posts are now technically more complete than previously, resulting in a reduced number of repeat interviews.
The AOS review program at NVC has recently been expanded to review I-864 forms submitted for immigrants processed at 10 posts. These ten posts (Manila, Ciudad Juarez, Santo Domingo, Guangzhou, Bogota, Port au Prince, Georgetown, Freetown, Tirana and Montreal) represent approximately 40% of the worldwide immigrant visa caseload. The I-864 forms for these posts are now being reviewed for technical completeness at NVC before the files go overseas. It is anticipated that the AOS review program at NVC will continue to expand until all I-864 forms submitted to posts overseas are reviewed for technical completeness prior to being sent to posts.
The Department is also in the process of contracting for a call center that will be available to assist sponsors in the United States in answering questions arising during the completion of the I-864 form. Another part of the Department's efforts to improve service is the development of a website that will provide line-by-line information to clarify the I-864 form. Both the website and call center should be operational in early FY01.
The new Affidavit of Support Fee will take effect October 1, 2000. When the proposed rule was published, it was anticipated that the fee would become effective June 1, 2000. That date has been pushed back to provide additional time to initiate new services for sponsors in the US.
Public Law 106-113, enacted November 29, 1999, authorizes the Secretary of State to charge and retain a fee for the processing of a sponsor's Affidavit of Support (Form I-864). The Secretary of State is also authorized under Executive Order 10718 of June 27, 1957, to exercise the President's authority under 22 U.S.C. 4219 to prescribe the fees to be charged for official services performed by the Department of State. This authority has been delegated to the Under Secretary for Management. The Schedule of Fees for Consular Services is set forth in 22 CFR 22.1, as amended on December 1, 1999 [64 FR 66769]. After an initial review of the costs, the AOS fee has been set initially at $50 per sponsor or joint sponsor filing an I-864 form.
This rule amends the Schedule of Fees for Consular Services by adding a new item: “61. Affidavit of Support Processing Fee.” It establishes a fee to cover the costs of providing assistance to any sponsor or joint sponsor who provides an I-864 form) under section 213A of the Immigration and Nationality Act (8 U.S.C. 1183a) for an immigrant visa applicant. The purpose of the assistance will be to help a sponsor or joint sponsor to complete such affidavit properly before it is forwarded to a consular post for adjudication by a consular officer in connection with an application for an immigrant visa. The AOS fee will be in addition to, and separate from, any fee imposed for immigrant visa application processing and issuance. The costs to be recovered by the AOS fee are not recovered by the immigrant visa application processing and issuance fees.
This new AOS fee will be charged only once for essentially duplicative I-864 forms filed in support of additional members of one family, made up of spouse, parents and minor unmarried children; even if each member of the family is being processed individually for immigration to the United States or if the family member may have had a separate immigrant visa petition filed on his/her behalf.
The Department will assess one AOS fee for each distinct I-864 form submitted, whether it is filed by the primary sponsor or by a joint sponsor. No AOS fee will be charged for co-sponsors filing I-864a forms. If more than one I-864 form is needed to fulfill the requirements of the law, the Department will assess one fee for each separate affidavit. A new AOS fee will be assessed if a new I-864 form is required in support of any application for immigration (for example, when a joint sponsor is needed for an application that has been rejected due to section 212(a)(4), inability to qualify under the public charge provision of the Immigration Act). The AOS fee is non-refundable as it is a processing fee.
The Department is publishing this rule as a final rule pursuant to 5 U.S.C. 553(a)(2) and the “good cause” provisions of 5 U.S.C. 553(b)(B); notice and comment are not necessary in light of the fact that this rule relates to agency management and merely establishes or removes visa symbols used internally by the Department. The rule makes no substantive regulatory changes.
The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $1 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $1 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
The Department of State does not consider this rule, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).
This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.
This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
Passports and visas, Schedule of consular fees.
8 U.S.C. 1153 note, 1351, 1351 note; 10 U.S.C. 2602(c); 22 U.S.C. 214, 2504(a), 4201, 4206, 4215, 4219; 31 U.S.C. 9701; E.O. 10718, 22 FR 4632, 3 CFR, 1954-1958 Comp., p. 382; E.O. 11295, 31 FR 10603, 3 CFR, 1966-1970 Comp., p. 570.
Coast Guard, DOT.
Notice of implementation.
The Coast Guard is implementing the special local regulations at 33 CFR 100.508 for the Hampton Bay Days Festival to be held September 8-10, 2000 on the Hampton River at Hampton, Virginia. These special local regulations are necessary to control vessel traffic due to the confined nature of the waterway and expected vessel congestion during the festival events. The effect will be to restrict general navigation in the regulated area for the safety of event participants, spectators and vessels transiting the event area.
33 CFR 100.508 is effective from 12 p.m. on September 8, 2000 to 6 p.m. on September 10, 2000.
Chief Petty Officer A. Walther, Marine Events Coordinator, Commander, Coast Guard Group Hampton Roads, 4000 Coast Guard Blvd., Portsmouth, VA 23703-2199, (757) 483-8567.
Hampton Bay Days, Inc. will sponsor the Hampton Bay Days Festival on September 8-10, 2000 on the Hampton River, Hampton, Virginia. The festival will include water ski demonstrations, personal watercraft and wake board competitions, paddle boat races, classic boat displays, fireworks displays and a helicopter rescue demonstration. In order to ensure the safety of participants, spectators and transiting vessels, 33 CFR 100.508 will be in effect for the duration of the festival activities. Under provisions of 33 CFR 100.508, vessels may not enter the regulated area without permission from the Coast Guard Patrol Commander, except that vessels may enter and anchor in the special spectator anchorage areas if they proceed at slow, no wake speed. The Coast Guard Patrol Commander will allow vessels to transit the regulated area between festival events. Because these restrictions will be in effect for a limited period, they should not result in a significant disruption of maritime traffic.
Coast Guard, DOT.
Notice of implementation.
The Coast Guard is implementing the special local regulations found at 33 CFR 100.515 during the United States Power Squadrons Governing Board fireworks display to be held September 7, 2000, on the Patapsco River at Baltimore, Maryland. These special local regulations are necessary to control vessel traffic due to the confined nature of the waterway and expected vessel congestion during the fireworks display. The effect will be to restrict general navigation in the regulated area for the safety of spectators and vessels transiting the event area.
33 CFR 100.515 is effective from 8:45 p.m. to 9:35 p.m. on September 7, 2000.
Chief Warrant Officer R. L. Houck, Marine Events Coordinator, Commander, Coast Guard Activities Baltimore, 2401 Hawkins Point Road, Baltimore, MD 21226-1971, (410) 576-2674.
The United States Power Squadrons Governing Board will sponsor a fireworks display on September 7, 2000 on the Patapsco River, Baltimore, Maryland. The fireworks display will be launched from a barge positioned within the regulated area. In order to ensure the safety of spectators and transiting vessels, 33 CFR 100.515 will be in effect for the duration of the event. Under provisions of 33 CFR 100.515, a vessel may not enter the regulated area unless it receives permission from the Coast Guard Patrol Commander. Spectator vessels may anchor outside the regulated area but may not block a navigable channel. Because these restrictions will be in effect for a limited period, they should not result in a significant disruption of maritime traffic.
Coast Guard, DOT.
Temporary final rule.
The Coast Guard is adopting temporary special local regulations during the Michelob Championship at Kingsmill fireworks display, to be held October 3, 2000, over the waters of the James River, Williamsburg, Virginia. These special local regulations are necessary to provide for the safety of life on navigable waters during the event.
This rule is effective from 8:45 p.m. to 9:45 p.m. on October 3, 2000.
Comments and materials received from the public as well as documents indicated in this preamble as being available in the docket, are part of docket CGD05-00-041 and are available for inspection or copying at Commander (Aoax), Fifth Coast Guard District, 431 Crawford Street, Portsmouth, Virginia 23704-5004, between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays.
Chief Petty Officer A. Walther, Marine Events Coordinator, Commander, Coast Guard Group Hampton Roads, 4000 Coast Guard Blvd., Portsmouth, VA 23703-2199, (757) 483-8567.
A notice of proposed rulemaking (NPRM) was not published for this regulation. In keeping with 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM. The Coast Guard received confirmation of the request for special local regulations on August 8, 2000. We were notified of the event with insufficient time to publish a NPRM, allow for comments, and publish a final rule prior to the event.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Michelob Championship at Kingsmill is sponsoring a fireworks display, to be held October 3, 2000, over the waters of the James River, Williamsburg, Virginia. The event will consist of pyrotechnic displays fired from a barge positioned near the Kingsmill Conference Center. A fleet of spectator vessels is anticipated. Due to the need for vessel control during the fireworks displays, vessel traffic will be temporarily restricted to provide for the safety of spectators and transiting vessels.
The Coast Guard is establishing temporary special local regulations on specified waters of the James River. The temporary special local regulations will be in enforced from 8:45 p.m. to 9:45 p.m. on October 3, 2000 and will restrict general navigation in the regulated area during the event. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. These regulations are needed to control vessel traffic during the fireworks display to enhance the safety of spectators and transiting vessels.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).
We expect the economic impact of this temporary final rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.
Although this regulation prevents traffic from transiting a portion of the James River during the event, the effect of this regulation will not be significant due to the limited duration of the regulation and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers, so mariners can adjust their plans accordingly.
Under the Regulatory Flexibility Act (5 U.S.C. 601
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in the effected portions of the James River during the event.
Although this regulation prevents traffic from transiting or anchoring in a portion of the James River during the event, the effect of this regulation will not be significant because of its limited duration and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers, so mariners can adjust their plans accordingly.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This rule will not impose an unfunded mandate.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
We considered the environmental impact of this rule and concluded that,
Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
33 U.S.C. 1233 through 1236; 49 CFR 1.46; 33 CFR 100.35.
(a)
(1)
(2)
(3)
(b)
(1) Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area.
(2) The operator of any vessel in these areas shall:
(i) Stop the vessel immediately when directed to do so by any official patrol.
(ii) Proceed as directed by any official patrol.
(c)
Coast Guard, DOT.
Temporary final rule.
The Coast Guard is establishing a temporary 200-yard radius safety zone in the navigable waters around the Northstar dock, Seal Island, Prudhoe Bay, Alaska. The Crowley Marine Services'
This temporary final rule is effective from 12:01 am August 1, 2000, until 11:59 pm September 30, 2000.
Lieutenant Commander Rick Rodriguez, Chief of Port Operations, USCG Marine Safety Office, Anchorage, at (907) 271-6724.
A notice of proposed rulemaking (NPRM) for this regulation was not published. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM and delaying the effective date would be contrary to national safety interests since immediate action is needed to minimize potential danger to the public. Due to the unpredictable edge of the ice cap in the Arctic Ocean, it was difficult to predict when vessel traffic would be able to transit safely, and therefore publishing the NPRM in a timely manner was not feasible. The
The Coast Guard is establishing a temporary 200-yard radius safety zone on the navigable waters of the United States around the Northstar Dock, Seal Island, Prudhoe Bay, Alaska. The Crowley Barge
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential cost and benefits under section 6(a)(3) of that order. It has not been reviewed by the Office of Management and Budget under that order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.
Under the Regulatory Flexibility Act (5 U.S.C. 601
In accordance with Sec. 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist small entities in understanding this rule so
This rule does not provide for a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Coast Guard has analyzed this rule under the principles and criteria contained in Executive Order 13132 and has determined that this rule does not have implications for federalism under that Order.
The Coast Guard considered the environmental impact of this rule and concluded that, under Figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation because it establishes a safety zone.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) and Executive Order 12875, Enhancing the Intergovernmental Partnership, (58 FR 58093; October 28, 1993) govern the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This rule will not impose an unfunded mandate.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
(a)
(b)
(c)
(1) The Captain of the Port means the Captain of the Port, Western Alaska. The Captain of the Port may authorize or designate any Coast Guard commissioned, warrant, or petty officer to act on his behalf as his representative.
(2) The general regulations governing safety zones contained in 33 CFR, Part 165.23 apply. No person or vessel may enter, transit through, anchor or remain in this safety zone, with the exception of attending vessels, without first obtaining permission from the Captain of the Port, Western Alaska, or his representative.
The Captain of the Port or his representative may be contacted in the vicinity of the BARGE 400 via marine VHF channel 16. The Captain of the Port's representative can also be contacted by telephone at (907) 271-6700.
Coast Guard, DOT.
Interim rule; request for comments.
The Coast Guard is establishing a safety zone on the waters of San Pedro Bay, California. The event requiring establishment of this safety zone is the dredging and landfill activities associated with the Port of Long Beach Pier T project. Entry into, transit through or anchoring within the safety zone by vessels other than those engaged in the construction of Pier T is prohibited by the Captain of the Port.
This rule will be in effect from 12:01 a.m. (PST) on August 1, 2000 until 11:59 p.m. on December 31, 2002. Comments must be received on or before November 6, 2000.
This docket for this regulation is maintained, and is available for inspection and copying between the hours of 9 a.m. and 4 p.m., Monday through Friday except federal holidays, at U.S. Coast Guard Marine Safety Office Los Angeles-Long Beach, 165 N. Pico Avenue, Long Beach, CA 90802. Comments may be mailed or hand-delivered to this address.
Lieutenant Junior Grade Ken O'Connor, Waterways Management Division, Marine Safety Office/Group Los Angeles-Long Beach, CA at (562) 980-4425/26.
In accordance with 5 U.S.C. 553, there is good cause why a notice of proposed rule making (NPRM) was not published for this regulation and good cause exists for making it effective less than 30 days after,
Although this rule is being published as an interim rule without prior notice, an opportunity for public comment is nevertheless desirable to ensure the rule is both reasonable and workable. Accordingly, persons wishing to comment may do so by submitting written comments to the office listed in
The Coast Guard plans no public meeting. Persons may request a public meeting by writing the Marine Safety Office Los Angeles-Long Beach at the address listed in
The construction of the Pier T project is scheduled to begin on May 5, 2000.
This temporary regulation is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. The location of the dredging and landfill operation is northwest of the old Navy mole in the vicinity of Long Beach Pier “T” which does not currently have much commerical or recreational vessel traffic. It is anticipated that once construction is completed vessel traffic in this area will increase. It has been exempted from review by the Office of Management and Budget under that order. It is not significant under the regulatory policies and procedures of the Department of Transportation (44 FR 11040; February 26, 1979). The Coast Guard expects the economic impact of this regulation to be so minimal that a full Regulatory Evaluation under Paragraph 10(e) of the regulatory policies and procedures of the Department of Transportation is unnecessary.
This regulation contains no collection of information requirements under the Paperwork Reduction Act (44 U.S.C. 3501
Under the Regulatory Flexibility Act (5 U.S.C. 601
In accordance with § 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact Lieutenant Junior Grade Ken O'Connor, Waterways Management Division, Marine Safety Office/Group Los Angeles-Long Beach, CA at (562) 980-4425/26.
The Coast Guard has analyzed this regulation under Executive Order 13132, and has determined that this rule does not have implications for federalism under that Order.
The Coast Guard has considered the environmental impact of this temporary regulation and concluded that under Chapter 2.B.2. of Commandant Instruction M16475.1C, Figure 2-1, paragraph (34)(g), it will have no significant environmental impact and it is categorically excluded from further environmental documentation. A Categorical Exclusion Determination and an Environmental Analysis checklist is available for inspection and copying and the docket is to be maintained at the address listed in
Under the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), the Coast Guard must consider whether this rule will result in an annual expenditure by state, local, and tribal governments, in the aggregate of $100 million (adjusted annually for inflation). If so, the Act requires that a reasonable number of regulatory alternatives be considered, and that from those alternatives, the least costly, most cost-effective, or least burdensome alternative that achieves the objective of the rule be selected.
No state, local, or tribal government entities will be affected by this rule, so this rule will not result in annual or aggregate costs of $100 million or more. Therefore, the Coast Guard is exempt from any further regulatory requirements under the Unfunded Mandates Act.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in section 3(a) and 3(b)(2) of this Order to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This Rule is not an economically significant rule and does not concern an environmental risk to safety disproportionately affecting children.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6 and 160.5; 49 CFR 1.46.
(a)
(b)
(c)
National Park Service, Interior.
Technical corrections.
This action makes technical corrections to regulations concerning the determination of a preferred offeror to correct a typographical error and to delete confusing and unnecessary provisions.
September 7, 2000.
Wendelin Mann, Concession Program, National Park Service, 1849 C Street, NW., Washington, DC 20240 (202/565-1219).
The National Park Service published in final in the
Section 51.40(c) has been determined by the National Park Service to be confusing and unnecessary in light of the entirety of § 51.40. Specifically, § 51.40(c) has been misunderstood to suggest that in order for a portion of a park area to be determined “backcountry” for purposes of 36 CFR part 51, the area must be inaccessible by motorized vehicle.
This is not the meaning of § 51.40. Rather, the section is intended to mean that the accessibility of a portion of a park area to motorized vehicles is only one consideration that may be taken into account in determining the existence of “backcountry” for purposes of determining which concession contracts are outfitter and guide contracts under 36 CFR part 51. As stated in § 51.40, determinations as to whether outfitter and guide operations are conducted in the backcountry of a park area are made on a park-by-park basis, taking into account the park area's particular geographic circumstances. Accessibility of an area by motorized vehicles is only a possible consideration in this determination.
In order to correct the confusion caused by § 51.40(c), the National Park Service has determined to delete 36 CFR 51.40(c) as confusing and unnecessary. The overall intentions of § 51.40 remain the same with the deletion of § 51.40(c), as § 51.40(a) continues to provide that remoteness from roads and developed areas is a possible factor in determining “backcountry” for purposes of 36 CFR part 51.
In addition, § 51.46 of the final regulation contains a typographical error, the inadvertent inclusion of the date “May 17, 2000,” in its text.
Concessions, Government contracts, National parks, Reporting and recordkeeping requirements.
The Act of August 25, 1916, as amended and supplemented, 16 U.S.C. 1
Federal Communications Commission.
Final rule.
This document permits the efficient use of spectrum for existing and future users, and will facilitate the deployment of new services in the 18 GHz band. These designations will significantly reduce sharing in the 18 GHz band, and thereby eliminate the need for many existing coordination procedures, leading to lower transaction costs and more efficient use of the band. The relocation process will take significant effort and commitment on the part of both the space and terrestrial communities. This plan has the potential to provide consumers, both business and residential, with exciting new services in the years to come. The Office of Management and Budget has approved the information collection requirements of 47 CFR 25.145(g), which should have been effective on January 20, 1998. This document establishes that effective date.
47 CFR 25.145(g) published at 62 FR 61448 was effective on January 20, 1998, following OMB approval of the information collection. This final rule is effective October 10, 2000. Written comments by the public on the new information collections are due November 6, 2000.
Office of the Secretary, 445 12th Street, SW., Washington, DC 20554.
Steven Selwyn, Planning & Negotiations Division, International Bureau, (202) 418-2160 or via electronic mail:
This is a summary of the Commission's Report and Order in IB Docket No. 98-172, FCC 00-212, adopted June 8, 2000 and
The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257) 445 12th Street, SW., Washington, DC and may also be purchased from the Commission's copy contractor, International Transcription Services (ITS), Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.
1. The
2. The 18 GHz band currently serves a variety of communications needs and has the potential to provide consumers, both business and residential, with exciting new services in the years to come. Our actions in this proceeding will allow for more efficient use of this spectrum. Previously, the entire 18 GHz band was allocated for shared use among various terrestrial fixed and mobile services, the FSS, and the mobile satellite service (“MSS”). We conclude that, in general, separating terrestrial fixed service operations from ubiquitously deployed FSS earth stations in dedicated sub-bands would serve the public interest. We also conclude, however, that limited frequency sharing between satellite and terrestrial services is feasible and should continue to be permitted where it serves the requirements of these services. We have attempted to protect the existing fixed terrestrial operations in this band to the maximum extent possible, while at the same time providing for the growth of both satellite and terrestrial services. The
3. The band plan that we adopt is a result of an examination of the record developed in response to our
4. In the band plan that we adopt, we designate the following spectrum for terrestrial fixed service use: (1) 17.7-18.3 GHz band on a primary basis; (2) 18.3-18.58 GHz band on a co-primary basis (with GSO/FSS); and (3) 19.3-19.7 GHz band on a co-primary basis (with MSS/FL). We designate the following spectrum for GSO/FSS service use: (1) 18.58-18.8 GHz band on a primary basis; and (2) 18.3-18.58 GHz band on a co-primary basis(with terrestrial fixed service), noting that the 19.7-20.2 GHz band is also allocated on a primary basis to the GSO/FSS. Furthermore, we designate the 18.8-19.3 GHz band to NGSO/FSS service use on a primary basis, and retain co-primary status for MSS/FL (with terrestrial fixed service) in the 19.3-19.7 GHz band. These designations will significantly reduce sharing in the 18 GHz band, and thereby eliminate the need for many existing coordination procedures, leading to lower transaction costs and more efficient use of the band. We note that United States Government systems are authorized to operate in the 17.8-20.2 GHz band in accordance with footnote US334 in the United States Table of Frequency Allocations and that coordination between non-Government operations, both terrestrial and satellite, and these Government operations will continue to remain in effect. Nothing in this Report and Order purports to change the relationship between Government and non-Government systems.
5. Recognizing the importance of existing terrestrial fixed service systems in the 18 GHz band, we will permit terrestrial fixed stations currently operating in spectrum designated in this
6. This
7. This
8. A review of the record leads us to conclude that this redesignated band plan results in an equitable and balanced approach to meeting the needs of the various existing and future operations in the 18 GHz band. We recognize that the adopted band plan does not provide a full 1000 Megahertz of unshared Ka-band downlink spectrum for GSO/FSS operations as requested by many GSO/FSS licensees. Nevertheless, we believe that the 720 MHz of unshared downlink spectrum at 18.58-18.8 GHz and 19.7-20.2, in addition to the flexible rules that permit sharing of 280 megahertz at 18.3-18.58 GHz, should provide a reasonable basis for GSO/FSS operations to be undertaken. While we realize that some GSO/FSS systems have already been designed, we expect that the current system designs of the GSO/FSS systems can proceed with some modification or that sharing agreements can be reached to permit the use of these designs. Moreover, we note that the same total capacity for GSO/FSS services is still available in locations where coordination can be achieved. We conclude that this plan will, through the judicious choice of band segments subject to co-primary sharing, significantly lower any consequential administrative costs of coordination. Furthermore, this plan goes a long way toward facilitating the deployment of new services by designating different dedicated sub-bands for ubiquitously deployed FSS earth stations, and nearly ubiquitous terrestrial fixed services in the 18 GHz band, thereby serving the public interest.
9.
10. Regarding secondary fixed operations in primary satellite designations, we conclude that terrestrial fixed services generally should not be designated for secondary use in either primary GSO/FSS or primary NGSO/FSS bands subject to blanket licensing. We find that the continued licensing of these fixed stations, with the exception of indoor low power operations, is incompatible with the ubiquitous placement of earth stations in the primary satellite service because if located close enough to such stations they may interfere with FSS reception. If we found otherwise we would be encouraging the extension of a condition that we have determined to be incompatible with the ubiquitous distribution of primary satellite services. Regarding the low power fixed systems mentioned in the
11. We believe the band plan adopted herein generally meets the spectrum needs of the respective services designated to operate in the 18 GHz band. We note that, like our NPRM proposal, the band plan we adopt herein provides GSO/FSS with 1000 MHz of spectrum, 720 MHz of which is primary and 280 MHz of which is co-primary. Several satellite commenters desire to obtain a minimum of 1000 MHz of unshared downlink spectrum in the Ka-band. These commenters seem to base their arguments, in part, on the fact that we designated 1000 MHz of uplink spectrum to GSO/FSS in the
12. We are extending the “cut-off” date for the 18.58-18.8 GHz band because the
13. The
14. We believe that a sunset period of ten (10) years for continued co-primary status of existing terrestrial fixed stations in the 18.58-18.8 GHz and 18.8-19.26 GHz frequency band is an appropriate compromise that will allow these systems to continue to operate in these bands, while giving FSS interests the option to pay the cost of relocating such systems if FSS interests want to deploy operations in those areas. We stress that the significance of the ten-year period is limited to identifying the entity that would pay for the relocation of existing terrestrial fixed stations when it is found that such entity, due to the interference it presents, would preclude the establishment of FSS stations. In the absence of an FSS earth station in the vicinity, such an entity could continue to operate beyond the ten-year period. Recognizing this, the fundamental issue here is how long constitutes an adequate period during which the FSS station should pay.
15. Accordingly, we are not requiring a voluntary negotiating period as we previously established for the PCS transition in § 101.69(c). Under our 18 GHz transition rules, FSS licensees may enter into negotiations with co-primary terrestrial fixed services in the 18.58-19.3 GHz band, for the purpose of agreeing to terms under which the terrestrial licensees would either relocate or accept a sharing arrangement. If no agreement is reached within two years for non-public safety incumbents, and three years for public safety incumbents, an FSS licensee may initiate involuntary relocation pursuant to § 101.91 of the rules we are adopting today. We believe these time periods provide a reasonable balance between the needs of new FSS operators to gain access to spectrum, and the needs of existing FS operators to ensure that relocated facilities are provided that meet their needs. We are providing additional mandatory negotiations time for public safety operations, noting comments about the special need of public safety systems to be able to continue to operate reliably during any transition period.
16. In the event that agreement is not reached in any negotiation period, the FSS licensee will have the option of invoking involuntary relocation. In such a case, an FSS licensee would be obligated to relocate only the specific links that cause the interference problem. Under involuntary relocation, a terrestrial fixed station must relocate provided that the FSS licensee guarantees payment of relocation costs, completes all activities necessary for implementing the replacement facilities, and builds and tests the replacement system for comparability. Terrestrial fixed service operators are not required to relocate until the alternative facilities are available for a reasonable time to make adjustments, determine comparability, and ensure a seamless handoff. It would not be in the public interest to allow a right of return to relocated incumbents, as was provided in the Emerging Technologies proceeding. The potential disruption to national, regional or world-wide satellite systems for the benefit of relatively few terrestrial fixed incumbents is infeasible. We will therefore allow an involuntary relocated terrestrial fixed incumbent to petition the Commission for additional modification to, or replacement of its equipment in any case where the incumbent believes it has not received comparable performance from its retuned or replaced equipment. Upon proof shown, we will order the FSS licensee in question to further modify or replace the incumbent terrestrial fixed licensee's equipment. We believe that these safeguards are needed for ensuring comparable terrestrial facilities obviate the need for more lengthy negotiating periods. We note that pursuant to the sunset provisions adopted, an FSS operator generally will no longer be responsible for relocation costs incurred by a terrestrial incumbent after June 8, 2010. By adopting these relocation rules, we put into place a proven system that should lead to efficient relocation and ultimately to the band segmentation that we conclude serves the public interest. We also believe that the relocation rules provide reasonable flexibility to an FSS licensee to establish its operations in a timely and economic manner.
17. Within our negotiation rules, we are also adopting criteria for comparable facilities. Both the existing 2 GHz rules and the rules we proposed in this proceeding include general criteria that
18. We declined, however, to propose to implement blanket licensing in shared bands. We also proposed requirements to ensure that Ka-band GSO/FSS systems did not cause harmful interference to GSO/FSS systems in adjacent orbital slots. However, due to a lack of information, we did not propose specific blanket licensing criteria. We now note that an industry technical group has reached a consensus on appropriate technical criteria for GSO blanket licensing and has submitted a report detailing that consensus. We have reviewed this report and generally adopt the group's recommendations, as specified in the attached rules. Pursuant to the rules we are adopting in this
19. With respect to NGSO/FSS systems, we note that the technical study of ITU-R Working Party 4-9S on NGSO/FSS interference to fixed stations has been completed, and an equation has been adopted that can be used to specify the space station pfd that provides interference protection to fixed stations. Therefore we adopt this equation for determining the maximum allowed pfd of NGSO/FSS space stations as a function of the number of satellites in the NGSO system constellation, as recommended by technical study groups of the ITU-R for inclusion in the International Radio Regulations. However, while a decision on the space station pfd is required for the proper design of earth stations, we have not been able to develop a consensus on the criteria to be used for the blanket licensing of NGSO/FSS earth stations; therefore, we defer decisions on the conditions for the blanket licensing of earth stations pending further evaluation.
20. Blanket
21. In the 18 GHz NPRM, we proposed that blanket license applicants would be required to designate a point of contact where records on location and frequency use of satellite earth stations will be maintained, in order to ensure that secondary users in these bands have the information necessary to avoid causing harmful interference to GSO/FSS earth stations. As a result of our decision to prohibit secondary use throughout the 18 GHz band, we decline to require satellite operators to designate a point of contact. Moreover, in an environment where there will be no secondary use in the band, requiring satellite operators to monitor the specific location and frequency usage of ubiquitously deployed earth stations could prove expensive and difficult. We also proposed that satellite operators obtaining a blanket license would be subject to an annual reporting requirement. Under this proposal, licensees would be required to include the number of earth stations actually brought into service in a yearly report to the Commission, so that we can monitor the development of this service. This policy is consistent with the requirements initially placed on Very Small Aperture Terminal (“VSAT”) blanket licensed earth station licensees in the 12/14 GHz frequency bands (Ku-band).
22. In the 18 GHz NPRM, we proposed to implement a blanket licensing regime for NGSO/FSS systems in the 18.8-19.3 and the 28.6-29.1 GHz band. However, we stated that we lacked sufficient information to propose specific blanket licensing criteria for NGSO systems, and requested comment on what type of technical criteria should be used. Commenters generally supported this proposal. Therefore, we will adopt our proposal made in the 18 GHz NPRM and will authorize earth station blanket licensing for NGSO/FSS systems in the bands in which NGSO/FSS has primary status, specifically the 18.8-19.3 GHz and 28.6-29.1 GHz frequency bands. The pfd limits for this band are specified in the rules. We recognize that we are not adopting specific blanket licensing rules at this time, and instead will address specific blanket licensing requirements in these bands in a future proceeding.
23. In recognition of the fact that the international allocation is not effective for approximately seven years, we adopt the following allocation and designation decisions, to take effect April 1, 2007: in the downlink band, we allocate 400 MHz of spectrum at 17.3-17.7 GHz for primary BSS use. In the uplink band, we allocate 300 MHz of spectrum at 24.75-25.05 GHz for primary FSS Earth-to-space use, limited to feeder links for the BSS allocation in the 17.3-17.7 GHz band. We allocate 200 MHz of spectrum at 25.05-25.25 GHz for co-primary sharing between FSS and the 24 GHz Service, requiring coordination between these services. Given our experience in the other bands shared between satellite and terrestrial services, we believe that the requirement for coordination in the uplink band will accomplish, with minimal regulation, our objective of providing maximum flexibility of use while ensuring a workable sharing environment. While we note that there is a difference of 100 megahertz of spectrum between the BSS downlinks and the feeder links, we are reluctant to reduce the amount of spectrum available for the feeder links at this time. The flexibility that this additional spectrum provides might prove quite useful to BSS system operators as they tackle the issues of local-into-local and regional programming, as well as any occasional difficulties that might be encountered during coordination.
24. In making these allocation and designation decisions, we strive to attain a balance that best serves the public interest. Our objective is to provide for new satellite services without compromising on our intentions to provide adequate, albeit reduced, continuing spectrum for the FS. We note that BSS is a rapidly growing service, and that additional spectrum will be needed for BSS within the next decade. We also recognize: (1) The importance of preserving terrestrial fixed service spectrum to continue supporting important existing terrestrial fixed service operations in the 17.7-17.8 GHz band; (2) the need to provide spectrum for the migration of terrestrial fixed services into that band; and (3) the need to provide for the growth of the 24 GHz Service.
25. In order to provide for maximum availability of all these services to the public, we conclude that a band segmentation approach will ensure that the BSS will be able to provide downlink service to the general public
26. While we do not believe that implementing the allocation immediately would be prudent, we agree to make the decision now to make an allocation that will be effective April 2007, so as to provide all parties with sufficient notice and time to design their systems to use this spectrum in the most efficient manner. Therefore, within this context, we decide now to make the downlink BSS and GSO/FSS allocations effective April 1, 2007. We are, however, stopping the allocation for the BSS at 17.7 GHz. This will provide 400 MHz of spectrum to the BSS at 17.3-17.7 GHz. Considering the amount of spectrum being lost by the fixed service as a result of this proceeding, we believe it is important to keep as much spectrum available to the terrestrial fixed service as possible, for as long as possible, to help in the relocation of displaced facilities. We proceed with the terrestrial fixed service relocation efforts at 18 GHz and begin the process of developing service rules for the 17 GHz BSS. If we determine that terrestrial fixed relocation spectrum requirements are not as demanding as predicted, we may re-examine the availability of all or a part of the 17.7-17.8 GHz band for BSS applications. Given the record of this proceeding, however, we must at this time ensure that this spectrum is available for terrestrial fixed service operations.
As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities was incorporated in the 18 GHz NPRM. The Commission sought written public comments on the proposals in the NPRM including comment on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
In this Report and Order, the Commission provides a band plan that should go a long way in facilitating the deployment of new services by designating different dedicated sub-bands for ubiquitously deployed FSS earth stations and near-ubiquitous terrestrial fixed services in the 18 GHz band. Additionally, through the judicious choice of band segments subject to co-primary sharing, this plan will significantly lower any consequential administrative costs of coordination.
No comments were submitted in direct response to the IRFA. However VisionStar made a specific proposal for the treatment of FSS licensees that are small businesses and several commenters provided licensee data for sub-bands of the spectrum concerned, incorporated for the specific services involved. We were unable to act on VisionStar's proposal for the provision of an “Early Service” for FSS licensees that are small businesses. This is because we do not collect annual revenue information from space station or earth station licensees, which would be necessary to determine if they are small businesses (see paragraph C ), and because of the potential interference impact of such “temporary secondary” operations on other FSS licensees.
The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the adopted rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (91 percent) are small entities. Below, we further describe and estimate the number of small entity licensees that may be affected by the adopted rules.
The Communications Act also contains a definition of a small cable system operator, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with
The Commission has not developed a definition of small entities applicable to licensees in the international services. Therefore, the applicable definition of small entity is generally the definition under the SBA rules applicable to Communications Services, Not Elsewhere Classified (NEC). This definition provides that a small entity is one with $11.0 million or less in annual receipts. According to the Census Bureau, there were a total of 848 communications services providers, NEC, in operation in 1992, and a total of 775 had annual receipts of less than $9.999 million. The Census Report does not provide more precise data.
The Commission's existing rules in part 25 on FSS operations contain reporting requirements for FSS systems, and we modify these reporting requirements to eliminate duplicative costs of filing multiple applications. In addition, we add an annual reporting requirement to indicate the number of satellite earth stations actually brought into service. The proposed blanket licensing procedures do not affect small entities disproportionately, and it is likely that no additional outside professional skills are required to complete the annual report indicating the number of small antenna earth stations actually brought into service.
The 18 GHz NPRM solicited comment on several alternatives for spectrum sharing, blanket licensing, and band segmentation. This Report and Order considered comments offering alternatives, and has acted in response to stated concerns and suggestions, particularly those representing significant agreement or consensus by commenters. The decisions of this Report and Order should positively impact both large and small businesses by providing a faster, more efficient, and less economically burdensome coordination and licensing procedure, as well as providing an alternative band plan that better meets these concerns. The blanket licensing service rules provide for consolidation of licensing for small antenna earth stations, and a new balanced requirement designed to ensure that new satellite services will not cause interference to existing terrestrial services. These rules substitute a single requirement to annually report the number of satellite earth stations brought into service in the last year, compared to the current requirement for individual licensing of such stations. This change, discussed further above, should minimize the impact on Small entities.
The Commission will send a copy of this Report and Order including this FRFA, in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1966, see 5 U.S.C. 801 (a)(1)(A). In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of this Report and Order and FRFA (or summaries thereof) will also be published in the
Pursuant to Sections 1, 4(i), 4(j), 301, 302, 303(c), 303(e), 303(f), 303(r) and 403 of the Communications Act of 1934, as amended, 47 U.S.C. Sections 151, 154 (i), 154(j), 301, 302, 303(c), 303(e), 303(f), 303 (r), and 403, this Report and Order IS ADOPTED and that parts 2, 21, 25, 74, 78, and 101 of the Commission's Rules ARE AMENDED, as specified in the rules,
The Regulatory Flexibility Analysis, as required by Section 604 of the Regulatory Flexibility Act and as set forth
The Commission's Consumer Information Bureau
This proceeding is terminated pursuant to Sections 4i and 4j of the Communications Act of 1934, as amended, 47 U.S.C. Sections 154(i), and 154 (j).
Radio, Telecommunications.
Communications common carriers, Communications equipment, Radio.
Communications common carriers, communications equipment, Radio, Satellites, Telecommunications.
Communications equipment, Radio, Television.
Cable television, Communications equipment, Radio.
Communications equipment, Radio.
47 U.S.C. 154, 302a, 303, and 336 unless otherwise noted.
a. Revise pages 67, 68, 69, 70, 71, and 72 of the Table.
b. In the list of United States footnotes, revise footnotes US255 and US334.
c. In the list of non-Federal government footnotes, revise footnote NG144 and add footnotes NG163, NG164, NG165, NG166, and NG167.
The additions and revisions read as follows:
US255 In addition to any other applicable limits, the power flux-density across the 200 MHz band 18.6-18.8 GHz produced at the surface of the Earth by emissions from a space station under assumed free-space propagation conditions shall not exceed −95 dB(W/m
US334 In the band 17.8-20.2 GHz, Government space stations in both geostationary (GSO) and non-geostationary satellite orbits (NGSO) and associated earth stations in the fixed-satellite service (space-to-Earth) may be authorized on a primary basis. For a Government geostationary satellite network to operate on a primary basis, the space station shall be located outside the arc, measured from east to west, 70 West Longitude to 120 West Longitude. Coordination between Government fixed-satellite systems and non-Government space and terrestrial systems operating in accordance with the United States Table of Frequency Allocations is required.
(a) In the sub-band 17.8-19.7 GHz, the power flux-density at the surface of the Earth produced by emissions from a Government GSO space station or from a Government space station in a NGSO constellation of 50 or fewer satellites, for all conditions and for all methods of modulation, shall not exceed the following values in any 1 MHz band:
(1) −115 dB(W/m
(2) −115 + 0.5 (δ−5) dB(W/m
(3) −105 dB(W/m
(b) In the sub-band 17.8-19.3 GHz, the power flux-density at the surface of the Earth produced by emissions from a Government space station in an NGSO constellation of 51 or more satellites, for all conditions and for all methods of modulation, shall not exceed the following values in any 1 MHz band:
(1) −115 −X dB(W/m
(2) −115 −X + ((10 + X)/20) (δ−5) dB(W/m
(3) −105 dB(W/m
For n ≤ 288, X = (5/119) (n−50) dB; and
For n > 288, X = (1/69) (n+ 402) dB.
NG144 Stations authorized as of September 9, 1983 to use frequencies in the bands 17.7-18.58 GHz and 19.3-19.7 GHz may, upon proper application, continue operations. Fixed stations authorized in the band 18.58-19.3 GHz that remain co-primary under the provisions of §§ 21.901(e), 74.502(c), 74.602(g), 78.18(a)(4), and 101.174(r) of this chapter may continue operations consistent with the provisions of those sections.
NG163 The allocation to the broadcasting-satellite service in the band 17.3-17.7 GHz shall come into effect on 1 April 2007.
NG164 The use of the band 18.3-18.8 GHz by the fixed-satellite service (space-to-Earth) is limited to systems in the geostationary-satellite orbit.
NG165 The use of the band 18.8-19.3 GHz by the fixed-satellite service (space-to-Earth) is limited to systems in non-geostationary-satellite orbits.
NG166 The use of the band 19.3-19.7 GHz by the fixed-satellite service (space-to-Earth) is limited to feeder links for the mobile-satellite service.
NG167 The use of the fixed-satellite service (Earth-to-space) in the band 24.75-25.25 GHz is limited to feeder links for the broadcasting-satellite service operating in the band 17.3-17.7 GHz. The allocation to the fixed-satellite service (Earth-to-space) in the band 24.75-25.25 shall come into effect on 1 April 2007.
Secs. 1, 2, 4, 201-205, 208, 215, 218, 303, 307, 313, 403, 404, 410, 602, 48 Stat. as amended, 1064, 1066, 1070-1073, 1076, 1077, 1080,1082, 1083, 1087, 1094, 1098, 1102; 47 U.S.C. 151, 154, 201-205, 208, 215, 218, 303, 307, 313, 314, 403, 404, 602; 47 U.S.C. 552, 554.
(e) Frequencies in the band segments 18,580-18,820 MHz and 18,920-19,160 MHz that were licensed or had applications pending before the Commission as of September 18, 1998 may continue those operations for point-to-point return links from a subscriber's location on a shared co-primary basis with other services under parts 25, 74, 78 and 101 of this chapter until June 8, 2010. Prior to June 8, 2010, such stations are subject to relocation by licensees in the fixed-satellite service. Such relocation is subject to the provisions of §§ 101.85 through 101.97 of this chapter. After June 8, 2010, such operations are not entitled to protection from fixed-satellite service operations and must not cause unacceptable interference to fixed-satellite service station operations. No new licenses will be granted in these bands after June 8, 2000.
47 U.S.C. 701-744. Interprets or applies sec. 303, 47 U.S.C. 303. 47 U.S.C. sections 154, 301, 302, 303, 307, 309 and 332, unless otherwise noted.
(e) Earth stations operating in the 20/30 GHz Fixed-Satellite Service with U.S.-licensed or non-U.S. licensed satellites: Applications to license individual earth stations operating in the 20/30 GHz band shall be filed on FCC Form 312, Main Form and Schedule B, and shall also include the information described in § 25.138. Earth stations belonging to a network operating in the 18.58-18.8 GHz, 19.7-20.2 GHz, 28.35-28.6 GHz or 29.5-30.0 GHz bands may be licensed on a blanket basis. Applications for such blanket authorization may be filed using FCC Form 312, Main Form and Schedule B, and specifying the number of terminals to be covered by the blanket license. Each application for a blanket license under this section shall include the information described in § 25.138.
(a) All applications for a blanket earth station license in the GSO FSS in the 18.58-18.8 GHz, 19.7-20.2 GHz, 28.35-28.6 GHz and 29.5-30.0 GHz bands that meet the following requirements shall be routinely processed:
(1) GSO FSS earth station antenna off-axis EIRP spectral density for co-polarized signals shall not exceed the following values, within ±3° of the GSO arc, under clear sky conditions:
(2) GSO FSS earth station antenna off-axis EIRP spectral density for co-polarized signals shall not exceed the following values, for all directions other than within ±3° of the GSO arc, under clear sky conditions:
(3) The values given in paragraphs (a) (1) and (2) of this section may be exceeded by 3 dB, for values of θ >10°, provided that the total angular range over which this occurs does not exceed 20° when measured along both sides of the GSO arc.
(4) GSO FSS earth station antenna off-axis EIRP spectral density for cross-polarized signals shall not exceed the following values, in all directions relative to the GSO arc, under clear sky conditions:
(5) For earth stations employing uplink power control, the values in paragraphs (a) (1), (2), and (4) of this section may be exceeded by up to 20 dB under conditions of uplink fading due to precipitation. The amount of such increase in excess of the actual amount of monitored excess attenuation over clear sky propagation conditions shall not exceed 1.5 dB or 15 % of the actual amount of monitored excess attenuation in dB, whichever is larger, with a confidence level of 90 percent except over transient periods accounting for no more than 0.5% of the time during which the excess is no more than 4.0 dB.
(6) Power flux-density (PFD) at the Earth's surface produced by emissions from a space station for all conditions, including clear sky, and for all methods of modulation shall not exceed a level of −118 dBW/m
(b) Each applicant for earth station license(s) that proposes levels in excess of those defined in paragraph (a) of this section shall submit link budget analyses of the operations proposed along with a detailed written explanation of how each uplink and each transmitted satellite carrier density figure is derived. Applicants shall also submit a narrative summary which must indicate whether there are margin shortfalls in any of the current baseline services as a result of the addition of the applicant's higher power service, and if so, how the applicant intends to resolve those margin short falls. Applicants shall certify that all potentially affected parties (i.e., those GSO FSS satellite networks that are 2, 4, and 6 degrees apart) acknowledge and do not object to the use of the applicant's higher power densities.
(c) Licensees authorized pursuant to paragraph (b) of this section shall bear the burden of coordinating with any future applicants or licensees whose proposed compliant operations at 6 degrees or smaller orbital spacing, as defined by paragraph (a) of this section, is potentially or actually adversely affected by the operation of the non-compliant licensee. If no good faith agreement can be reached, however, the non-compliant licensee shall reduce its earth station and space station power density levels to be compliant with those specified in paragraph (a) of this section.
(d) The applicant shall provide for each earth station antenna type, a series of radiation patterns measured on a production antenna performed on a calibrated antenna range and, as a minimum, shall be made at the bottom, middle, and top frequencies of the 30 GHz band. The radiation patterns are:
(1) Co-polarized patterns for each of two orthogonal senses of polarizations in two orthogonal planes of the antenna.
(i) In the azimuth plane, plus and minus 10 degrees and plus and minus 180 degrees.
(ii) In the elevation plane, zero to 30 degrees.
(2) Cross-polarization patterns in the E- and H-planes, plus and minus 10 degrees.
(3) Main beam gain.
(e) Protection of receive earth stations from adjacent satellite interference is based on either the antenna performance specified in § 25.209 (a) and (b), or the actual receiving earth station antenna performance, if actual performance provides greater isolation from adjacent satellite interference. For purposes of insuring the correct level of protection, the applicant shall provide, for each earth station antenna type, the antenna performance plots for the 20 GHz band, including the format specified in paragraph (d) of this section.
(f) The earth station licensee shall not transmit towards a GSO FSS satellite unless it has prior authorization from the satellite operator or a space segment vendor authorized by the satellite operator. The specific transmission shall be conducted in accordance with the operating protocol specified by the satellite operator.
(g) A licensee applying to renew its license must include on FCC Form 405 the number of constructed earth stations.
(g) * * * (1) * * *
(2) Licensees shall submit to the Commission a yearly report indicating the number of earth stations actually brought into service under its blanket licensing authority. The annual report is due to the Commission no later than the first day of April of each year and shall indicate the deployment figures for the preceding calendar year.
(h)
(i)
(1)
(2)
(3)
(a)(1)
(c) In the 19.3-19.7 GHz, 22.55-23.00 GHz, 23.00-23.55 GHz, and 24.45-24.75 GHz frequency bands, the power flux-density at the Earth's surface produced by emissions from a space station for all conditions and for all methods of modulation shall not exceed the following values:
(1) −115 dB (W/m
(2) −115+0.5 (d−5) dB (W/m
(3) −105 dB (W/m
(d) In the 18.3-18.8 GHz frequency bands, the power flux-density at the Earth's surface produced by emissions from a space station for all conditions and for all methods of modulation shall not exceed the following values:
(1) −118 dB (W/m
(2) −118+0.65 (d−5) dB (W/m
(3) −105 dB (W/m
(e) In addition to the limits specified in paragraph (d) of this section, the power flux-density across the 200 MHz band 18.6-18.8 GHz produced at the Earth's surface by emissions from a space station under assumed free-space propagation conditions shall not exceed −95 dB(W/m
(f) In the 18.8-19.3 GHz frequency band, the power flux-density at the Earth's surface produced by emissions from a space station for all conditions and for all methods of modulation shall not exceed the following values:
(a) The administrative aspects of the coordination process are set forth in §§ 101.103(d) of this chapter in the case of coordination of terrestrial stations with earth stations and in § 25.203 in the case of coordination of earth stations with terrestrial stations.
47 U.S.C. 154, 303, 307, 336(f) and 554.
(c) Aural broadcast STL and intercity relay stations that were licensed or had applications pending before the Commission as of September 18, 1998 may continue those operations in the band 18,760-18,820 and 19,100-19,160 MHz on a shared co-primary basis with other services under parts 21, 25, and 101 of this chapter until June 8, 2010. Prior to June 8, 2010, such stations are subject to relocation by licensees in the fixed-satellite service. Such relocation is subject to the provisions of §§ 101.85 through 101.97 of this chapter. After June 8, 2010, such operations are not entitled to protection from fixed-satellite service operations and must not cause unacceptable interference to fixed-satellite service station operations. No new licenses will be granted in these bands.
(1)(i) 5 MHz maximum authorized bandwidth channels:
(ii) Licensees may use either a two-way link or one frequency of a frequency pair for a one-way link and shall coordinate proposed operations pursuant to the procedures required in § 101.103(d) of this chapter.
(2) [Reserved]
(d) Permissible changes in equipment operating in the bands 18.76-18.82 GHz and 19.1-19.16 GHz. Notwithstanding other provisions of this section, licensees of stations that remain co-primary under the provisions of § 74.502(c) may not make modifications to their systems that increase interference to satellite earth stations, or result in a facility that would be more costly to relocate.
(g) The following frequencies are available for assignment to television STL, television relay stations and television translator relay stations. Stations operating on frequencies in the sub-band 19.26-19.3 GHz that were licensed or had applications pending before the Commission as of September 18, 1998 may continue those operations on a shared co-primary basis with other services under parts 21, 25, 78, and 101 of this chapter. Such stations, however, are subject to relocation by licensees in the fixed-satellite service. Such relocation is subject to the provisions of §§ 101.85 through 101.97 of this chapter. No new licenses will be granted in the 19.26-19.3 GHz band after June 8, 2000. The provisions of § 74.604 do not apply to the use of these frequencies. Licensees may use either a two-way link or one or both frequencies of a frequency pair for a one-way link and shall coordinate proposed operations pursuant to procedures required in § 101.103(d) of this chapter.
(b) Coordination of assignments in the 6425-6525 MHz and 17.7-19.7 GHz bands will be in accordance with the procedure established in § 101.103(d) of this chapter except that the prior
(e) Permissible changes in equipment operating in the band 19.26-19.3 GHz. Notwithstanding other provisions of this section, licensees of stations that remain co-primary under the provisions of § 74.602(g) may not make modifications to their systems that increase interference to satellite earth stations, or result in a facility that would be more costly to relocate.
Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as amended, 1064, 1065, 1066, 1081, 1082, 1083, 1084, 1085; 47 U.S.C. 152, 153, 154, 301, 303, 307, 308, 309.
(a) * * *
(4) The Cable Television Relay Service is also assigned the following frequencies in the 17,700-19,700 MHz band. These frequencies are co-equally shared with stations in other services under parts 25, 74, and 101 of this chapter. Cable Television Relay Service stations operating on frequencies in the sub-band 19.26-19.3 GHz that were licensed or had applications pending before the Commission as of September 18, 1998 may continue those operations on a shared co-primary basis with other services under parts 25, 74, and 101 of this chapter. Such stations, however, are subject to relocation by licensees in the fixed-satellite service. Such relocation is subject to the provisions of §§ 101.85 through 101.97 of this chapter. No new part 78 licenses will be granted in the 19.26-19.3 GHz band after June 8, 2000. Licensees may use either a two-way link or one or both frequencies of a frequency pair for a one-way link and shall coordinate proposed operations pursuant to procedures required in § 101.103 (d) of this chapter. These bands may be used for analog or digital modulation.
(b) 6425-6525 MHz and 17.7-19.7 GHz. Coordination of fixed and mobile assignments will be in accordance with the procedure established in § 101.103(d) of this chapter, except that the prior coordination process for mobile (temporary fixed) assignments may be completed orally and the period allowed for response to a coordination notification may be less than 30 days if the parties agree.
(d)
47 U.S.C. 154, 303.
Permissible changes in equipment operating in the band 18.58-19.3 GHz: Notwithstanding other provisions of this section, stations that remain co-primary under the provisions of § 101.147(r) may not make modifications to their systems that increase interference to satellite earth stations, or result in a facility that would be more costly to relocate.
Fixed services (FS) frequencies in the 18.58-19.3 GHz bands listed in §§ 21.901(e), 74.502(c), 74.602(g), and 78.18(a)(4) of this chapter, and § 101.147(a) and (r) have been allocated for use by the fixed-satellite service (FSS). The rules in this section provide for a transition period during which FSS licensees may relocate existing FS licensees using these frequencies to other microwave bands.
(a) FSS licensees may negotiate with FS licensees authorized to use frequencies in the 18.58-19.30 GHz band for the purpose of agreeing to terms under which the FS licensees would:
(1) Relocate their operations to other fixed microwave bands or other media; or alternatively
(2) Accept a sharing arrangement with the FSS licensee that may result in an otherwise impermissible level of interference to the FSS operations.
(b) FS operations in the 18.58-19.30 GHz band that remain co-primary under the provisions of §§ 21.901(e), 74.502(c), 74.602(d), and 78.18(a)(4) of this chapter, and § 101.147(r) will continue to be co-primary with the FSS users of this spectrum until June 8, 2010 or until the relocation of the fixed service operations, whichever occurs sooner. After June 8, 2010, only FS operations in the band 19.26-19.3 GHz will continue to be co-primary with the FSS users. Notwithstanding this continued co-primary status, FS users in the 19.26-19.3 GHz band remain subject to the relocation procedures of §§ 101.85 through 101.95. If no agreement is reached during the negotiations, an FSS licensee may initiate relocation procedures. Under the relocation procedures, the incumbent is required to relocate, provided that the FSS licensee meets the conditions of § 101.91.
(c) Negotiation periods are defined as follows:
(1) Non-public safety incumbents will have a two-year negotiation period.
(2) Public safety incumbents will have a three-year negotiation period.
(a) The negotiation is triggered by the fixed-satellite service (FSS) licensee, who must contact the fixed services (FS) licensee and request that negotiations begin.
(b) Once negotiations have begun, an FS licensee may not refuse to negotiate and all parties are required to negotiate in good faith. Good faith requires each party to provide information to the other
(1) Whether the FSS licensee has made a bona fide offer to relocate the FS licensee to comparable facilities in accordance with § 101.91(b);
(2) If the FS licensee has demanded a premium, the type of premium requested (e.g., whether the premium is directly related to relocation, such as system-wide relocations and analog-to-digital conversions, versus other types of premiums), and whether the value of the premium as compared to the cost of providing comparable facilities is disproportionate (i.e., whether there is a lack of proportion or relation between the two);
(3) What steps the parties have taken to determine the actual cost of relocation to comparable facilities;
(4) Whether either party has withheld information requested by the other party that is necessary to estimate relocation costs or to facilitate the relocation process.
(c) Any party alleging a violation of our good faith requirement must attach an independent estimate of the relocation costs in question to any documentation filed with the Commission in support of its claim. An independent cost estimate must include a specification for the comparable facility and a statement of the costs associated with providing that facility to the incumbent licensee.
(d) Negotiations will commence when the FSS licensee informs the FS licensee in writing of its desire to negotiate. Negotiations will be conducted with the goal of providing the FS licensee with comparable facilities, defined as facilities possessing the following characteristics:
(1)
(2)
(3)
(a) If no agreement is reached during the negotiations period, an FSS licensee may initiate relocation procedures under the Commission's rules. FSS licensees are obligated to pay to relocate only the specific microwave links from which their systems may receive interference. Under these procedures, the FS licensee is required to relocate, provided that the FSS licensee:
(1) Guarantees payment of relocation costs, including all engineering, equipment, site and FCC fees, as well as any legitimate and prudent transaction expenses incurred by the FS licensee that are directly attributable to the relocation, subject to a cap of two percent of the hard costs involved. Hard costs are defined as the actual costs associated with providing a replacement system, such as equipment and engineering expenses. FSS licensees are not required to pay FS licensees for internal resources devoted to the relocation process. FSS licensees are not required to pay for transaction costs incurred by FS licensees during the negotiations once the negotiation is initiated, or for fees that cannot be legitimately tied to the provision of comparable facilities;
(2) Completes all activities necessary for implementing the replacement facilities, including engineering and cost analysis of the relocation procedure and, if radio facilities are used, identifying and obtaining, on the incumbents' behalf, new microwave frequencies and frequency coordination; and
(3) Builds the replacement system and tests it for comparability with the existing 18 GHz system.
(b) Comparable facilities. The replacement system provided to an incumbent during a relocation must be at least equivalent to the existing FS system with respect to the following three factors:
(1)
(2)
(3)
(c) The FS licensee is not required to relocate until the alternative facilities are available to it for a reasonable time
(d) If the FS licensee demonstrates to the Commission that the new facilities are not comparable to the former facilities, the Commission may require the FSS licensee to further modify or replace the FS licensee's equipment.
(a) FSS licensees are not required to pay relocation costs after the relocation rules sunset (see §§ 74.502(c), 74.602(g), and 78.18(a)(4) of this chapter, and § 101.147 (a) and (r)). Once the relocation rules sunset, an FSS licensee may require the incumbent to cease operations, provided that the FSS licensee intends to turn on a system within interference range of the incumbent, as determined by TIA Bulletin 10-F or any standard successor. FSS licensee notification to the affected FS licensee must be in writing and must provide the incumbent with no less than six months to vacate the spectrum. After the six-month notice period has expired, the FS licensee must turn its license back into the Commission, unless the parties have entered into an agreement which allows the FS licensee to continue to operate on a mutually agreed upon basis.
(b) If the parties cannot agree on a schedule or an alternative arrangement, requests for extension will be accepted and reviewed on a case-by-case basis. The Commission will grant such extensions only if the incumbent can demonstrate that:
(1) It cannot relocate within the six-month period (e.g., because no alternative spectrum or other reasonable option is available); and
(2) The public interest would be harmed if the incumbent is forced to terminate operations (e.g., if public safety communications services would be disrupted).
(a) After June 8, 2000, all major modifications and extensions to existing FS systems in the 18.58-19.30 band (with the exception of certain low power operations authorized under § 101.147(r)(10)) will be authorized on a secondary basis to FSS systems. All other modifications will render the modified FS license secondary to FSS operations, unless the incumbent affirmatively justifies primary status and the incumbent FS licensee establishes that the modification would not add to the relocation costs for FSS licensees. Incumbent FS licensees will maintain primary status for the following technical changes:
(1) Decreases in power;
(2) Minor changes (increases or decreases) in antenna height;
(3) Minor location changes (up to two seconds);
(4) Any data correction which does not involve a change in the location of an existing facility;
(5) Reductions in authorized bandwidth;
(6) Minor changes (increases or decreases) in structure height;
(7) Changes (increases or decreases) in ground elevation that do not affect centerline height;
(8) Minor equipment changes.
(b) The provisions of § 101.83 are applicable, notwithstanding any other provisions of this section.
(a) * * *
(30) The frequency band 18,580-19,300 GHz is not available for new licensees after June 8, 2000, except for low power indoor stations in the band 18,820-18,870 MHz and 19,160-19,210 MHz.
(r)
(10) * * *
(iv) Low power stations authorized in the band 18.8-19.3 GHz after June 8, 2000 are restricted to indoor use only.
Federal Communications Commission.
Final rule.
In response to a
Effective October 10, 2000. A filing window for Channel 238A at Burnsville will not be opened at this time. Instead, the issue of opening a filing window for this channel will be addressed by the Commission in a subsequent order.
Federal Communications Commission, Washington, DC 20554.
R. Barthen Gorman, Mass Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Report and Order, MM Docket No. 98-34, adopted August 16, 2000, and released August 25, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Service, Inc., (202) 857-3800, located at 1231 20th Street, NW., Washington, DC 20036.
Radio broadcasting.
47 U.S.C. 154, 303, 334 and 336.
Federal Communications Commission.
Final rule.
This document allots Channels 221A and Channel 283A at Blackduck, Minnesota, in response to a petition filed by Community Religious Broadcasters.
Effective October 10, 2000.
Federal Communications Commission, Washington, DC 20554.
Kathleen Scheuerle, Mass Media Bureau, (202) 418-2180.
This is a summary of the Commission's Report and Order, MM Docket No. 99-78, adopted August 16, 2000, and released August 25, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800, facsimile (202) 857-3805.
Radio broadcasting.
47 U.S.C. 154, 303, 334 and 336.
Federal Communications Commission.
Final rule; establishment of effective date.
The Commission's rule, 47 CFR 79.2 which contains information collection requirements, became effective August 29, 2000. This rule, which was published in the
The rule, 47 CFR 79.2, published at 65 FR 26757, May 9, 2000, became effective on August 29, 2000.
Marcia Glauberman (202) 418-7200, TTY (202) 418-7172, or via Internet at
1. On April 13, 2000, the Commission adopted a
2. The
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service) are adding the northern California Evolutionarily Significant Unit (ESU) of steelhead (
Effective August 7, 2000.
Nancy Gloman, Chief, Office of Conservation and Classification, U.S. Fish and Wildlife Service, (703/358-2171).
In accordance with Reorganization Plan No. 4 of 1970, the NMFS, National Oceanic and Atmospheric Administration, Department of Commerce, is responsible for decisions under the Act regarding the northern California ESU of steelhead. Under section 4(a)(2) of the Act, NMFS must decide whether a species under its jurisdiction should be classified as endangered or threatened, and the Service is responsible for the actual addition of these species to the List of Endangered and Threatened Wildlife in 50 CFR 17.11(h).
The NMFS published its determination of threatened status for the northern California ESU, of steelhead on June 7, 2000 (65 FR 36075). Accordingly, we are now adding the northern California steelhead ESU to the List of Endangered and Threatened Wildlife, as a threatened species. Only naturally spawned populations of steelhead (and their progeny) residing below naturally occurring and man-made impassible barriers (
This rule does not contain any information collection requirements that require Office of Management and Budget approval under the Paperwork Reduction Act.
We have determined that an environmental assessment, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the
Endangered and threatened species, Export, Import, Reporting and recordkeeping requirements, Transportation.
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
(h) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Announcement of fixed gear sablefish mop-up fishery; fishing restrictions, request for comments.
NMFS announces adjustments to the management measures for the Pacific coast groundfish fishery off Washington, Oregon, and California. This action establishes beginning and ending dates and the cumulative period landings limit for the mop-up portion of the limited entry, fixed gear sablefish fishery. These actions are intended to provide for harvest of the remainder of the sablefish available to the 2000 limited entry, fixed gear primary sablefish fishery. This action applies only in waters north of 36° N. lat.
The fixed gear sablefish mop-up fishery will begin at 1201 hours local time (l.t.), September 5, 2000, and will end at 1200 hours l.t., September 19, 2000, at which time the limited entry daily trip limit fishery resumes. The daily trip limits for the fixed gear sablefish fishery will remain in effect, unless modified, superseded or rescinded, until the effective date of the 2001 annual specifications and management measures for the Pacific coast groundfish fishery, which will be published in the
Submit comments to William Stelle, Jr., Administrator, Northwest Region (Regional Administrator), NMFS, 7600 Sand Point Way NE., Bldg. 1, Seattle WA 98115-0070; or Rebecca Lent, Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.
Yvonne deReynier, Northwest Region, NMFS, 206-526-6129.
The limited entry, fixed gear sablefish fishery consists of a “primary” fishery, composed of the “regular” fishery described here, during which most of the fixed gear sablefish allocation is taken, and then a “mop-up” fishery, during which the remainder of the amount available to the primary fishery is taken.
The regulations at 50 CFR 660.323(a)(2) provide a season structure for the limited entry, fixed gear primary (regular + mop-up) sablefish fishery. During the regular season, each vessel with a limited entry permit with a sablefish endorsement registered for use with that vessel may land up to the cumulative trip limit for the tier to which the permit is assigned. For the August 6-15, 2000, regular season, participants fished under the following tier limits: Tier 1, 81,000 lb (36,741 kg); Tier 2, 37,000 lb (16,783 kg); Tier 3, 21,000 lb (9,525 kg). Other than the large, tiered cumulative limits, the only trip limit in this fishery was for sablefish smaller than 22 inches (56 cm). The 2000 regular season started at noon on August 6, 2000, and lasted for 9 days to noon on August 15, 2000.
Preseason estimates of the likely total harvest in the regular season fishery were conservative in order to minimize the risk of the fishery exceeding its total allocation. Because of the conservative projections, the regular fishery was not expected to harvest all of the limited entry, fixed gear allocation for north of 36° N. lat. The Northwest Regional Administrator is authorized to announce a mop-up fishery for any allocation in excess of that required for the daily trip limit fishery, if such allocation is large enough, about 3 weeks after the end of the regular season and consisting of one cumulative trip limit for each vessel (50 CFR 660.323(a)(2)(v)). Approximately 3 weeks are needed for the Pacific Fishery Management Council (Council) Groundfish Management Team to compile all of the landings receipts from the regular season and to calculate the amount available for the mop-up season, if any. This action establishes the 2000 mop-up fishery for limited entry, fixed gear permit holders with sablefish endorsements.
The 2000 limited entry nontrawl sablefish allocation is 2,430 mt, of which 2,072 mt is available to the primary (regular + mop-up) season. The best available information on August 23, 2000, indicated that approximately 1,952 mt of sablefish were landed during the regular season. Therefore, 121 mt remains available to the mop-up fishery. The Regional Administrator, after consulting with Council representatives via telephone on August 23, 2000, has determined that the mop-up fishery will occur, and that a cumulative trip limit of 3,000 lb (1,361 kg) (round weight) in a 14-day period (September 5-September 19, 2000) would give limited entry permit holders with sablefish endorsements the opportunity to harvest the remainder of the sablefish available to the primary fishery without exceeding the amount of sablefish set aside for that fishery. To protect juvenile sablefish, the same minimum size limit, 22 inches (56 cm) total length or 15.5 inches (39 cm) for sablefish that are headed, that was in
Only limited entry permit holders with sablefish endorsements may participate in the mop-up fishery. No vessel may land more than one cumulative limit. There is no limited entry, daily trip limit fishery during the mop-up fishery period. Therefore, holders of limited entry permits without sablefish endorsements may not land any sablefish during the mop-up period. Similarly, once a vessel with a sablefish endorsed limited entry permit has been used to land its 3,000 lb (1,361 kg) cumulative trip limit in the mop-up fishery, it may not be used to land more sablefish until the daily trip limits resume at 1201 hours on September 19, 2000. Also, acquiring additional limited entry permits does not entitle a vessel to more than one cumulative limit.
Following the mop-up fishery, daily trip limits are reimposed until the end of the year, or until modified. The next opportunity for the Council to recommend modifications to the daily trip limit fishery will be at its September 11-15, 2000, meeting. The sablefish daily trip limit for the limited entry fishery north of 36° N. lat. after the mop-up season is 300 lb (136 kg) per day, with no more than 2,400 lb (1,089 kg) cumulative per calendar month. Since the daily trip limits apply to a 24-hour day starting at 0001 hours, but the mop-up fishery begins and ends at 1200 hours, it will be legal for a vessel in the limited entry fishery to land a daily trip limit between 0001 hours and 1200 hours on September 5, 2000, just before the start of the mop-up season, and between 1201 hours and 2400 hours on September 19, 2000, following the mop-up season.
A daily trip limit is the maximum amount that may be taken and retained, possessed, or landed per vessel in 24 consecutive hours, starting at 0001 hours local time. Only one landing of groundfish may be made in that 24-hour period. Daily trip limits may not be accumulated. If a trip lasts more than 1 day, only one daily trip limit is allowed. Daily trip limits were in effect until the closed period before the regular season, and went back into effect after the post-season closure ended on August 16, 2000. A cumulative trip limit is the maximum amount of sablefish that may be taken and retained, possessed, or landed per vessel in a specified period of time, with no limit on the number of landings or trips.
NMFS announces the dates of the fixed gear sablefish limited entry mop-up fishery. All other provisions remain in effect. In the 2000 (65 FR 221, January 4, 2000) annual management measures, paragraph IV.B.(2)(b)(i) is revised to read as follows:
(2) * * *
(b) * * *
(i)
These actions are authorized by the Pacific Coast Groundfish Fishery Management Plan, which governs the harvest of groundfish in the U.S. exclusive economic zone off the coasts of Washington, Oregon, and California. The determination to take these actions is based on data that only recently became available. Because of the need for immediate action to start the mop-up fishery for sablefish, NMFS has determined that providing an opportunity for prior notice and comment would be impractical and contrary to public interest. Delay of this rule could push the mop-up season into inclement autumn weather. Similarly, the agency believes that the risk of pushing the season into inclement weather constitutes good cause to waive the 30-day delay in effectiveness. These actions are taken under the authority of 50 CFR 660.323(a)(2), and are exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure.
NMFS is closing directed fishing for groundfish by vessels using hook-and-line gear in the Gulf of Alaska (GOA), except for sablefish or demersal shelf rockfish. This action is necessary because the 2000 Pacific halibut bycatch mortality allowance specified for hook-and-line gear targeting groundfish other than sablefish or demersal shelf rockfish in the GOA has been caught.
Effective 1200 hrs, Alaska local time (A.l.t.), September 1 , 2000, until 2400 hrs, A.l.t., December 31, 2000.
Mary Furuness, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The Final 2000 Harvest Specifications of Groundfish for the GOA (65 FR 8298, February 18, 2000) established a 290 metric ton Pacific halibut bycatch mortality allowance for groundfish included in the other hook-and-line fishery, which is defined at § 679.21(d)(4)(iii)(C). The other hook-and-line fishery includes all groundfish, except sablefish and demersal shelf rockfish.
In accordance with § 679.21(d)(7)(ii), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2000 Pacific halibut bycatch mortality allowance specified for the hook-and-line groundfish fisheries other than sablefish or demersal shelf rockfish in the GOA has been caught. Consequently, NMFS is
Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).
This action responds to the best available information recently obtained from the fishery. It must be implemented immediately in order to prevent exceeding the 2000 Pacific halibut bycatch mortality allowance specified for the groundfish fisheries other than sablefish or demersal shelf rockfish by vessels using hook-and-line gear in the GOA. A delay in the effective date is impracticable and contrary to the public interest. The 2000 Pacific halibut bycatch mortality allowance specified for hook-and-line gear targeting groundfish other than sablefish or demersal shelf rockfish in the GOA has been caught. NMFS finds for good cause that the implementation of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.
This action is required by § 679.21 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Closure.
NMFS is prohibiting directed fishing for Atka mackerel with gears other than jig in the Eastern Aleutian District and the Bering Sea subarea of the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the 2000 total allowable catch (TAC) of Atka mackerel allocated to these areas.
Effective 1200 hrs, Alaska local time, September 5, 2000, until 2400 hrs, A.l.t., December 31, 2000.
Mary Furuness, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP at subpart H of 50 CFR part 600 and CFR part 679.
The amount of the 2000 TAC of Atka mackerel for gears other than jig in the Eastern Aleutian District and the Bering Sea subarea of the BSAI was established as 15,018 metric tons (mt) by the Final 2000 Harvest Specifications of Groundfish for the BSAI (65 FR 8282, February 18, 2000). See § 679.20(c)(3)(iii).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the TAC for non-jig gear Atka mackerel in the Eastern Aleutian District and the Bering Sea subarea will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 14,518 mt, and is setting aside the remaining 500 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance soon will be reached. Consequently, NMFS is prohibiting directed fishing for Atka mackerel with gears other than jig in the Eastern Aleutian District and the Bering Sea subarea of the BSAI.
Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).
This action responds to the best available information recently obtained from the fishery. It must be implemented immediately to prevent overharvesting the 2000 TAC of Atka mackerel with gears other than jig in the Eastern Aleutian District and the Bering Sea subarea of the BSAI. A delay in the effective date is impracticable and contrary to the public interest. Further delay would only result in overharvest. NMFS finds for good cause that the implementation of this action should not be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Rescission of a closure.
NMFS is opening directed fishing for Pacific cod by catcher vessels using trawl gear in portions of the Bering Sea and Aleutian Islands management area (BSAI) in which such fishing is authorized. This action is necessary to fully utilize the portion of the 2000 total allowable catch (TAC) of Pacific cod allocated to these vessels using trawl gear in this area.
Effective 1200 hours, Alaska local time (A.l.t.), September 1, 2000.
Nick Hindman, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The portion of the TAC of Pacific cod allocated to catcher vessels using trawl
The fishery for Pacific cod by catcher vessels using trawl gear in the BSAI was closed to directed fishing under § 679.20(d)(1)(iii) on April 24, 2000, (65 FR 24655, April 27, 2000), in order to reserve amounts anticipated to be needed for incidental catch in other fisheries. In that action, the Regional Administrator, Alaska Region, NMFS (Regional Administrator) also established a directed fishing allowance of 37,953 mt, and set aside the remaining 4,000 mt as bycatch to support other anticipated groundfish fisheries.
NMFS has determined that as of August 12, 2000, 1,325 mt remain in the portion of the TAC of Pacific cod allocated to catcher vessels using trawl gear in the BSAI and of that amount, 200 mt will be necessary as bycatch to support other anticipated groundfish fisheries through the end of 2000. Therefore, the Regional Administrator is establishing a revised directed fishing allowance of 41,753, and is setting aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries. NMFS has determined that 1,125 mt remain in the directed fishing allowance. Therefore, pursuant to §679.25(a)(1)(i), NMFS is rescinding the previous closure and is opening directed fishing for Pacific cod by catcher vessels using trawl gear in the portion of the BSAI in which such directed fishing is authorized by law. All fishery closures specified in regulations implementing the FMP remain in full force. In addition, all groundfish trawl fishing within Steller sea lion critical habitat in the exclusive economic zone west of 144° W. long. remains prohibited (65 FR 49766, August 15, 2000).
This action responds to the best available information recently obtained from the fishery. It must be implemented immediately in order to allow full utilization of the Pacific cod TAC. Providing prior notice and opportunity for public comment for this action is impracticable and contrary to the public interest. Further delay would only disrupt the FMP objective of providing the Pacific cod TAC for harvest. NMFS finds for good cause that the implementation of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.
This action is authorized by § 679.25 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the adoption of a new airworthiness directive (AD) that is applicable to certain Cessna Model 500 series airplanes. This proposal would require inspection of the piston housing for an “SB” impression stamp; a one-time inspection of the brake assembly to detect cracked or broken brake stator disks; and replacement of the brake assembly with a new or serviceable assembly, if necessary. The proposal is prompted by several reports of wheel lockups that appear to be caused by cracked or broken brake stator disks becoming jammed in the brake assembly and preventing rotation. Such jamming of the brake assembly may result in reduced directional control or braking performance during landing.
Comments must be received by October 23, 2000.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-65-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232 or sent via the Internet using the following address: 9-anm-nprmcomment@faa.gov. Comments sent via fax or the Internet must contain “Docket No. 2000-NM-65-AD” in the subject line and need not be submitted in triplicate. Comments sent via the Internet as attached electronic files must be formatted in Microsoft Word 97 for windows or ASCI II text.
The service information referenced in the proposed rule may be obtained from Cessna Aircraft Co., P.O. Box 7706, Wichita, Kansas 67277. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington, or at the FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209.
Shane Bertish, Aerospace Engineer, Systems and Propulsion Branch, ACE-116W, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone (316) 946-4156; fax (316) 946-4407.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this notice may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (e.g., reasons or data) for each request.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-65-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-65-AD, 1601 Lind Avenue SW., Renton, Washington 98055-4056.
The FAA has received reports of wheel lockups after release of brakes following landing. The lockups adversely affect braking performance and directional control and appear to be associated with cracks in the brake stator disks. If multiple cracks extend completely through the stator, a piece of the disk may break loose and slip down, jamming the wheel/tire assembly. If not corrected, this condition could result in the wheel/tire assembly becoming locked in place and consequent reduced directional control or braking performance during landing.
The FAA has reviewed and approved Cessna Service Bulletin SB500-32-47, dated February 22, 2000, which transmits BFGoodrich Service Bulletin 2-1530-32-2, Revision No. 1, dated February 3, 2000, and Cessna Service Bulletins SB500-32-48 and SB550-32-41, both dated February 22, 2000, which transmit BFGoodrich Service Bulletin 2-1528-32-2, Revision No. 1, dated February 3, 2000.
BFGoodrich Service Bulletin 2-1528-32-2, Revision 1 applies to airplanes equipped with BFGoodrich brake assembly part number P/N 2-1528-6, and Service Bulletin 2-1530-32-2, Revision 1 applies to airplanes equipped with BFGoodrich brake assembly P/N 2-1530-4. These service bulletins describe procedures for inspection for certain letters impression-stamped on the piston housing or the stator disks; inspection of the brake
Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletins described previously.
There are approximately 370 airplanes of the affected design in the worldwide fleet. The FAA estimates that 259 airplanes in the U.S. registry would be affected by this proposed AD, that the average labor rate is $60 per work hour, and that it would take up to 1 work hour per airplane to accomplish the proposed inspection if the inspection were done at the time of a tire change and up to 4 work hours per airplane if the inspection were done at a different time. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $15,540, or $60 per airplane, for inspections of the brake assembly done at the time of a tire change and up to $62,160, or $240 per airplane, for inspections done at a different time.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this proposed AD and that no operator would accomplish those actions in the future if this proposed AD were not adopted.
The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
This AD applies to each airplane 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 airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is 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.
To prevent jamming of the wheel/tire assembly, which could result in a loss of directional control or braking performance upon landing, accomplish the following:
(a) Within the next 50 landings or 90 days after the effective date of this AD, whichever occurs first, inspect the brake assembly for an “SB” impression stamped on the piston housing, as shown in Figure 1 of BFGoodrich Service Bulletin 2-1528-32-2, Revision 1 (for airplanes equipped with BFGoodrich brake assembly P/N 2-1528-6) or Service Bulletin 2-1530-32-2, Revision 1 (for airplanes equipped with BFGoodrich brake assembly P/N 2-1530-4), both dated February 3, 2000, as applicable. If an “SB” is impression-stamped on the piston housing, no further action is required by this AD.
(b) Within the next 50 landings or 90 days after the effective date of this AD, whichever occurs first, inspect the stator disks for a CHG AI or a CHG B or higher letter impression-stamped on the disk, in accordance with BFGoodrich Service Bulletin 2-1528-32-2, Revision 1 (for airplanes equipped with BFGoodrich bake assembly P/N 2-1528-6) or Service Bulletin 2-1530-32-2, Revision 1 (for airplanes equipped with BF Goodrich brake assembly P/N 2-1530-4), both dated February 3, 2000, as applicable. Unless both stator disks are so marked, perform paragraph (b)(1).
(1) When the brake assembly has accumulated 376 total landings since its installation or within 50 landings on the airplane after the effective date of this AD, whichever occurs later, perform a detailed visual inspection for cracked or broken disks in accordance with the applicable service bulletin.
(i) If no cracked or broken stator disks are found, the brake assembly can be re-assembled and used until a total of 700 landings are accumulated on the brake assembly at which time the brake assembly must be removed and replaced with a new or serviceable brake assembly.
(ii) If any cracked or broken stator disk is found, prior to further flight, the brake assembly must be replaced with a new or serviceable brake assembly.
For the purposes of this AD, a detailed visual inspection is defined as: “An intensive visual examination of a specific structural area, system, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at intensity deemed appropriate by the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface cleaning and elaborate access procedures may be required.”
(2) When the brake assembly has accumulated 700 total landings since its installation or within 50 landings on the airplane after the effective date of this AD, whichever occurs later, replace the brake assembly with a new or serviceable brake assembly, in accordance with the applicable service bulletin.
(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, Wichita Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Wichita ACO.
(d) Special flight permits may be issued in accordance with sections 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 accomplished.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes to adopt a new airworthiness directive (AD) that would apply to certain Raytheon Aircraft Company (Raytheon) Beech Model 58 airplanes. The proposed AD would require you to inspect the rudder bellcrank interconnect tube for damage; replace or refinish the interconnect tube, if necessary; and modify the floorboard. Four reports of damage to the interconnect tube prompted the proposed action. The actions specified by the proposed AD are intended to correct the wrong use of screws and consequent wear in the pilot/copilot pedal interconnect tube, which could result in loss of rudder control.
The Federal Aviation Administration (FAA) must receive any comments on this proposed rule on or before October 11, 2000.
Send comments in triplicate to the Federal Aviation Administration (FAA), Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-CE-42-AD, 901 Locust, Room 506, Kansas City, Missouri 64106. You may look at comments at this location between 8 a.m. and 4 p.m., Monday through Friday, except holidays.
You may get the service information referenced in the proposed AD from Raytheon Aircraft Company, P.O. Box 85, Wichita, Kansas 67201-0085; telephone: (800) 429-5372 or (316) 676-3140; on the Internet at <http://www.raytheon.com/rac/servinfo/27-3013.pdf>. This file is in Adobe Portable Document Format. The Acrobat Reader is available at <http://www.adobe.com/>. You may read this information at the Rules Docket at the address above.
Paul C. DeVore, Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Mid-Continent Airport, Wichita, Kansas 67209; telephone: (316) 946-4142; facsimile: (316) 946-4407.
The FAA is reexamining the writing style we currently use in regulatory documents, in response to the Presidential memorandum of June 1, 1998. That memorandum requires federal agencies to communicate more clearly with the public. We are interested in your comments on the ease of understanding this document, and any other suggestions you might have to improve the clarity of FAA communications that affect you. You can get more information about the Presidential memorandum and the plain language initiative at http://www.faa.gov/language/.
We estimate it would take 1 hour to either replace or refinish the rudder bellcrank interconnect tube. Based on the cost factors presented above, we estimate that the total cost impact of replacing or refinishing the interconnect tube on U.S. operators is $60 per airplane.
The manufacturer will allow warranty credit for labor and parts to the extent noted in the service bulletin.
These figures only take into account the costs of the proposed initial inspection and do not take into account the cost of replacement parts that you might require because of the initial inspection.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. FAA amends Section 39.13 by adding a new airworthiness directive (AD) to read as follows:
(a)
(b)
(c)
(d)
(e)
(1) Your alternative method of compliance provides an equivalent level of safety; and
(2) The Manager, Wichita Aircraft Certification Office (ACO), approves your alternative. Send your request through an FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Wichita ACO.
This AD applies to each airplane identified in paragraph (a) of this AD, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (e) of this AD. You should include in the request an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if you have not eliminated the unsafe condition, specific actions you propose to address it.
(f)
(g)
(h)
Federal Trade Commission.
Advance notice of proposed rulemaking and request for comment.
In this document, the Federal Trade Commission (the “Commission” or “FTC”) requests comment on developing the administrative, technical, and physical information Safeguards Rule that the Commission is required to establish pursuant to section 501(b) of the Gramm-Leach-Bliley Act (the “G-L-B Act” or “Act”) for the financial institutions under its jurisdiction, as set forth in section 505(a)(7). After reviewing the comments received in response to this document and request for comment, the Commission will issue a notice of proposed rulemaking.
Comments must be received on or before October 10, 2000.
Written comments should be addressed to: Secretary, Federal Trade Commission, Room H-159, 600 Pennsylvania Avenue, NW., Washington, DC 20580. The Commission requests that commenters submit the original plus five copies, if feasible. Comments should also be submitted, if possible, in electronic form, on either a 5
Laura Berger, Attorney, Division of Financial Practices, Federal Trade Commission, Washington, DC 20580, 202-326-3224.
On November 12, 1999, President Clinton signed the G-L-B Act (Pub. L. 106-102) into law. Subtitle A of Title V of the Act, captioned Disclosure of Nonpublic Personal Information, limits the instances in which a financial institution may disclose nonpublic personal information about a consumer to nonaffiliated third parties, and requires a financial institution to disclose to all of its customers the institution's privacy policies and practices with respect to information sharing with both affiliates and nonaffiliated third parties. Title V also requires the Commission to establish by rule appropriate standards for the financial institutions subject to its jurisdiction relating to administrative, technical, and physical safeguards (hereinafter “Safeguards Rule”) to insure the security and confidentiality of customer records and information, to protect against any anticipated threats or hazards to the security or integrity of such records, and to protect against unauthorized access to or use of such records or information which could result in substantial harm or inconvenience to any customer.
On May 12, 2000, the Commission issued a final rule implementing the requirements of Subtitle A that relate to the disclosure of nonpublic personal information about a consumer to nonaffiliated third parties and the disclosure to all customers of the institution's privacy policies and practices with respect to information sharing with both affiliates and nonaffiliated third parties (hereinafter “Privacy Rule”).
The Act does not require the Commission (or other agencies) to coordinate in developing a Safeguards Rule, and permits the agencies, with the exception of the SEC and the Commission, to develop their safeguards standards by issuing guidelines.
On June 26, 2000, the OCC, Board, OTC, and FDIC published a joint
The SEC's safeguards rule restates the objectives of section 501(b), and passes along to financial institutions the requirement to develop policies and procedures that are “reasonably designed” to meet these goals.
Prior to issuing a proposed Safeguards Rule, the Commission seeks public comment on the following questions concerning the scope and potential requirements of such a rule. In formulating a proposed rule, the Commission will consider the costs and benefits of the proposed rule's requirements.
In order to develop the Safeguards Rule the Commission is required to implement, the Commission seeks comment on several issues relevant to the proper scope of the rule.
The Commission requests comment on the range of information that should be subject to the Safeguards Rule. The privacy provisions of Subtitle A of Title V of the Act require that financial institutions provide certain notices of their privacy policies to individuals, but vary these requirements according to whether the individual is a “customer” or a “consumer” of the financial institution. Section 502 (a) & (b) (consumers); Section 503 (customers). Respecting consumers, the G-L-B Act generally prohibits a financial institution from disclosing nonpublic personal information about a consumer to a nonaffiliated third party without first notifying the consumer and providing an opportunity to opt out of the disclosure. Section 502 (a) & (b). Customers, however, are entitled to notice of a financial institution's privacy policies at the time that a customer relationship is established, and annually thereafter during the continuation of the relationship, regardless of whether nonpublic personal information will be shared with nonaffiliated third parties. Section 503.
In contrast to the privacy provisions, section 501 of the G-L-B Act refers solely to customers' nonpublic personal information and customer records and information. Section 501(a) sets forth the “policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers' nonpublic personal information,” while section 501(b), “in furtherance of the policy in subsection (a)”, requires the Commission to establish standards: “(1) To insure the security and confidentiality of customer records and information; (2) protect against any anticipated threats or hazards to the security or integrity of such records; and (3) to protect against unauthorized access to or use of such records or information which could result in substantial harm or inconvenience to any customer.” Sections 501(a), 501(b)(1)-(3) (emphases added). The Commission requests comment on what constitutes “customer records and information” under subsection (b), particularly in light of the reference to “customers' nonpublic personal information” in subsection (a). Also, should the definition of “customer records and information” under the Safeguards Rule be similar to the definition of “nonpublic personal information” for customers under the Commission's Privacy Rule? Should the Safeguards Rule ever apply to “consumer” information maintained by a financial institution? Where, for example, a financial institution cannot accurately separate its customer records and information from its consumer records, should the Safeguards Rule require the financial institution to safeguard both types of records?
The Commission also requests comment on the range of financial institutions to which the Safeguards Rule should apply. With certain exceptions, a financial institution is defined in the Act as any institution the business of which is engaging in financial activities as described in section 4(k) of the Bank Holding Company Act of 1956 (12 U.S.C. 1843(k)). Under the Commission's Privacy Rule, any institution that is significantly engaged in such financial activities is a financial institution. 16 CFR 313.3(k)(1). However, only those financial institutions that have “consumers” or establish “customer relationships” have an obligation to disclose their privacy policies under the Act. §§ 502 & 503; 16 CFR 313.4 & 313.5. Financial institutions that have no customer relationships or consumers, but obtain nonpublic personal information from another financial institution (
The Safeguards Rule must establish appropriate standards for financial institutions subject to its jurisdiction relating to the administrative, technical, and physical safeguards against the harms contemplated by the Act, in order to protect customer records and information from anticipated threats and hazards, and provide them with security and confidentiality, including protection against unauthorized access or use. At the same time, the Commission recognizes that financial institutions may deem different safeguards appropriate according to the size and complexity of the financial institution, the nature and scope of its activities, and the nature of its records. In what ways, if any, should the Safeguards Rule take into account the need for financial institutions to keep pace with changing technology and other changes to their operational environment? Should the Safeguards Rule set forth minimum procedures a financial institution must follow, a minimum level of effectiveness financial institutions must maintain through their safeguards, or a combination of both? Do any current private standards, association rules, or
The Commission seeks comment on how the Safeguards Rule will achieve the results contemplated by the Act without unduly burdening the ability of small financial institutions to serve consumers. Further, to the extent commenters recommend that the Safeguards Rule require specific administrative, technical and physical safeguards, the Commission requests comment on whether the requirements are appropriate for small financial institutions.
What specific steps, if any, should the Safeguards Rule require financial institutions to take to provide administrative, technical, and physical safeguards for their customer records and information? Is a different level of specificity appropriate according to whether the Safeguards Rule is prescribing administrative, technical, or physical measures? For example, should the Safeguards Rule prescribe specific minimum measures, such as shedding of discarded paper records, that a financial institution must take to provide for the physical security of its customer records and information? Similarly, to provide for administrative security, should the Safeguards Rule require that financial institutions take particular minimum steps, such as designating an employee who is responsible for monitoring internal access to customer records and information? Alternatively, when dealing with technical safeguards, should the Safeguards Rule set forth a more general standard for adequate safeguards, such as “effective controls or programs” or “reasonable policies and procedures”? If the Safeguards Rule provides a more general standard for administrative, technical, or physical safeguards, what examples or other clarification of adequate safeguards should be included? For example, should the Safeguards Rule set forth categories or areas of administrative, technical and physical safeguards (“safeguards categories”) for financial institutions to address in designing and implementing safeguards appropriate to their operations? Would safeguards categories that require a financial institution to focus on particular areas of operations, such as “Personnel Training and Management,” “Information Storage and Transmission,” and “Records Disposal,” assist financial institutions to develop and maintain safeguards in a thorough and consistent manner? Would a common standard, such as “effective controls or programs” or “reasonable policies and procedures” suggested above, apply to every safeguards category, or would some safeguards categories, such as “Records Disposal,” be subject to more objective requirements?
The Commission seeks comment on how the Safeguards Rule should reflect the three objectives for information safeguards that are set forth in section 501(b)(1)-(3) of the Act.
Section 501(b) requires the Commission to establish standards for administrative, technical and physical safeguards to “protect against anticipated threats or hazards to the security or integrity” of customer records and information obtained by financial institutions. Section 501(b)(2). Should “anticipated threats and hazards” be defined, and if so, how? Should the Safeguards Rule require financial institutions to anticipate threats and hazards according to particular procedures? If so, what threats and hazards should be assessed, and by what procedures? Should the Safeguards Rule require financial institutions to assess threats and hazards according to particular categories (“risk categories”), such as “Risks to Physical Security,” “Risks to Integrity,” or “Risks in Records Disposal”? When assessing threats and hazards, should a financial institution be required to classify the value and sensitivity of the records to be protected and/or the gravity of any threats? Under what circumstances, if any, should financial institutions be required to conduct these assessments in writing?
Should the Safeguards Rule require that financial institutions reassess the threats or hazards to their information security systems, and, if so, at what intervals? Should the Safeguards Rule define technical or other changes to an institution's information security environment that warrant reevaluation of existing safeguards? Among other times, should a financial institution be required to assess threats and hazards within a reasonable time after it knows or should know of a new or emerging threat or hazard to the security or integrity of its records? Similarly, should the Safeguards Rule require that the effectiveness of existing safeguards be evaluated through appropriate tests? If so, how specifically should the standards define these tests?
Finally, how should the Safeguards Rule protect against anticipated threats and hazards to the integrity of customer records and information? Should protecting integrity of customer records and information include requiring a financial institution to notify a customer when his or her records and information are subject to loss, damage, or unauthorized access? Does insuring integrity of customer records and information require that customers be granted periodic access to their records, in order to monitor the accuracy of this information?
In addition to requiring protection against anticipated threats and hazards, section 501(b) requires that the safeguards standards “protect against unauthorized access to or use of such records or information which could result in substantial harm or inconvenience to any customer.” Section 501(b)(3). Should “unauthorized access” and “unauthorized use” be defined, and if so, how? Should the Safeguards Rule require financial institutions to follow certain minimum procedures to “protect against unauthorized access to” customer records and information? Are there any circumstances under which financial institutions should be required to maintain written records of their procedures for preventing unauthorized access and use?
If the Safeguards Rule should require financial institutions to follow certain minimum steps to prevent unauthorized access and use, what procedures are most appropriate for the diverse range of financial institutions subject to the Commission's jurisdiction? For example, should the Safeguards Rule require that financial institutions designate a person within the institution who is responsible for preventing and detecting unauthorized access to and use of customer records and information? Similarly, should the Safeguards Rule require that financial institutions enter into confidentiality agreements with their employees or train their employees in procedures for preventing unauthorized access to and
In addition to requiring protection against anticipated threats and hazards and against unauthorized access and use, section 501(b) requires that the safeguards standards “insure the security and confidentiality of customer records and information” Section 501(b)(1). Does this requirement mean something more than protecting against anticipated threats and hazards and unauthorized access and use? In particular, what should insuring “confidentiality” of information mean? What measures should the Safeguards Rule require a financial institution to take to maintain the confidentiality and security of customer records and information that it discloses? Where applicable, should the Safeguards Rule require a financial institution that discloses customer records and information to notify the recipients of the limitations on reuse and redisclosure of the information imposed by the Privacy Rule?
The proposed Interagency Guidelines and the NCUA's proposed Guidelines (collectively, “the proposed Guidelines”) both require regulated financial institutions to implement an “Information Security Program” that is developed by following certain procedures outlined by the respective proposed Guidelines. In their respective section III.A., the proposed Guidelines require each financial institution to involve its board of directors and management in various aspects of developing, implementing, and assessing an information security program. Under both proposals, a financial institution must take four basic steps to develop an information security program: (1) Identify and assess the risks that may threaten protected information; (2) develop a written plan containing policies and procedures to manage and control these risks; (3) implement and test the plan; and (4) adjust the plan on a continuing basis to account for changes in technology, the sensitivity of the protected information, and internal or external threats to information security. Similarly, in their respective sections III.C., both proposals provide a list of factors that a financial institution should consider in developing its information security program. The factors include specific potential elements of a security plan that should be considered, such as “contract provisions and oversight mechanisms” to protect the security of information handled by service providers (respective III.C.(g)), as well as broader issues that the security plan should address, such as “[a]cess rights to [covered] information,” (respective III.C.(a)). Using the procedures provided by the proposed Guidelines, each covered financial institution is to develop a comprehensive information security program, the adequacy of which will be reviewed by the relevant agency through established oversight procedures, such as safety and soundness reviews. Finally, in their respective sections III.D., the proposed Guidelines require financial institutions to exercise due diligence in managing and monitoring outsourcing arrangements, in order to make sure that its service providers have implemented an effective information security program.
The proposed guidelines focus on the procedures that should be followed to develop a written information security program, and do not specify particular security measures that must be adopted. They do provide, however, that the Board of Directors must oversee efforts to develop, implement, and maintain an “effective” information security program. Should the Commission's Safeguards Rule be similar to the proposed Guidelines, and if so, how? Does the Act's requirement that the Commission issue a rule, rather than guidelines, warrant a different approach? Does the fact that the Commission does not conduct regular examination of financial institutions warrant more specific security measures? What, if any, features of the more general approach to safeguards taken by the SEC in its Privacy of Consumer Financial Information Final Rule (described in Section A,
By direction of the Commission.
Securities and Exchange Commission.
Proposed rule; extension of time period to submit materials for public hearing on September 20, 2000; location of hearings.
The Securities and Exchange Commission is extending the time period by which participants must submit written materials for the public hearing on September 20, 2000, on the proposed rule Revision of the Commission's Auditor Independence Requirements (65 FR 43148 July 12, 2000). On August 10, 2000, the Commission issued a Notice announcing public hearings on September 13, 2000 in New York and September 20, 2000 in Washington, DC (65 FR 49954 8/16/2000). The original submission date for materials was September 5, 2000. The new submission date for those testifying on September 20, 2000 is September 12, 2000.
Written submissions for the September 20, 2000 hearing are due on September 12, 2000.
Oral statements or summaries of testimony, and other written testimony or comments, should be mailed to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20459-0609 or filed electronically at the following e-mail address: rule-comments@sec.gov. All oral statements or summaries of testimony, and other written testimony or comments, should refer to Comment File No. S7-13-00. Electronic submissions should include “Comment File No. S7-13-00” and “Testimony” in the subject line. Copies of all requests and other submissions and transcripts of the hearings will be available for public inspection and copying in the Commission's Public Reference Room at 450 Fifth Street, NW., Washington, DC 20549. Electronically submitted requests and other materials will be posted on the Commission's internet web site (www.sec.gov) following the hearings.
The hearing on September 13 will be held at Pace Downtown Theatre at Pace University, Spruce Street between Park Row and Gold Street, New York, New York (across from City Hall Park). The hearing on September 20 will be held in the William O. Douglas Room at the Commission's headquarters at 450 Fifth Street, NW., Washington, DC 20549.
John M. Morrissey, Deputy Chief Accountant, Office of the Chief Accountant, at (202) 942-4400.
By the Commission.
Forest Service, USDA.
Negotiated rulemaking committee meeting.
The Secretary of Agriculture has established a negotiated rulemaking committee to develop recommendations for a proposed rule addressing the placement, use, and removal of fixed anchors used for recreational rock climbing purposes in congressionally designated wilderness areas administered by the Forest Service. The Fixed Anchors in Wilderness Negotiated Rulemaking Advisory Committee is composed of individuals representing a cross section of interests with a definable stake in the outcome of the proposed rule. The Committee has been established in accordance with the provisions of the Federal Advisory Committee Act and is engaged in the process of rulemaking pursuant to the provisions of the Negotiated Rulemaking Act. The Committee has held meetings in June, July, and August and will hold a fourth meeting in September. All meetings of the committee are open to public attendance.
The next meeting of the advisory committee will be held in Golden, Colorado, on September 19-20. The meeting is scheduled from 8 a.m. to 5:30 p.m. on the first day and from 8 a.m. to 3:30 p.m. on the second day.
The advisory committee meeting will be held in the auditorium of the Rocky Mountain Regional Office, Forest Service, USDA, 740 Simms St., Golden, Colorado on September 19 and next door to the Regional Office at the Best Western—Denver West Motel conference room, located at 11595 W. 6th Avenue, Lakewood, CO, on September 20.
Jerry Stokes, Wilderness Program Manager, Recreation, Heritage, and Wilderness Resources Staff, (202) 205-0925.
Environmental Protection Agency.
Notice of intent to delete the White Farm Equipment Site (Site) from the National Priorities List (NPL).
The Environmental Protection Agency (EPA) Region VII announces the intent to delete the White Farm Equipment site from the National Priorities List (NPL) and requests public comment on this proposed action. The NPL constitutes appendix B of 40 CFR part 300 which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended. The EPA and the state of Iowa have determined that the site poses no significant threat to public health or the environment, as defined by CERCLA. Five-year review reports will continue to be conducted.
Comments concerning the proposed deletion of this site from the NPL may be submitted on or before October 10, 2000.
Comments may be mailed to Catherine Barrett, Remedial Project Manager, Superfund Division, Missouri/Kansas Remedial Branch, U.S. Environmental Protection Agency, Region VII, 901 North 5th Street, Kansas City, KS 66101. Comprehensive information on this site is available through the public docket which is available for viewing at the U.S. EPA Region VII, Superfund Records Center, 901 North 5th Street, Kansas City, KS 66101.
Catherine Barrett, Remedial Project Manager, U.S. Environmental Protection Agency, 901 North 5th Street, Kansas City, KS 66101, phone (913) 551-7704, fax (913) 551-7063.
The EPA Region VII announces the intent to delete the White Farm Equipment site, Charles City, Iowa, from the NPL, and requests public comments on this proposed action. The NPL constitutes appendix B of 40 CFR part 300 which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA). The EPA identifies sites that appear to present a significant risk to public health, welfare, or the environment and maintains the NPL as the list of these sites. The EPA and the Iowa Department of Natural Resources (IDNR) have determined that the remedial action for the site has been successfully executed.
The EPA will accept comments on the proposal to delete this site thirty (30) days after publication of this document in the
Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses the procedures that EPA is using for this action. Section IV discusses the White Farm Equipment site and explains how the site meets the deletion criteria.
Section 300.425(e) of the NCP provides that sites may be deleted from the NPL where no further response is appropriate. In making a determination to delete a site from the NPL, EPA in consultation with the state, shall consider whether any of the following criteria has been met:
(i) Responsible parties or other persons have implemented all appropriate response actions required;
(ii) All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
(iii) The remedial investigation has shown that the release of hazardous substances poses no significant threat to public health or the environment and, therefore, remedial measures are not appropriate.
Even when a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the site above levels that allow for
The following procedures were used for the intended deletion of this site: (1) Responsible parties or other persons have implemented all appropriate response actions required; (2) The state of Iowa has concurred with the proposed deletion decision; (3) A notice has been published in the local newspaper and has been distributed to appropriate federal, state, and local officials and other interested parties announcing the commencement of a 30-day comment period on EPA's Notice of Intent to Delete; and (4) All relevant documents have been made available in the site information repository.
Deletion of the site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. The NPL is designed primarily for informational purposes and to assist Agency management. As mentioned in Section II of this notice, section 300.425 (e) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions. For deletion of this site, EPA's Regional Office will accept and evaluate public comments on EPA's Notice of Intent to Delete before making a final decision to delete. If necessary, the Agency will prepare a Responsiveness Summary to address any significant public comments received.
A deletion occurs when the Regional Administrator places a final notice in the
The following site summary provides the Agency's rationale for the proposal to delete this site from the NPL.
The White Farm Equipment site is located in Floyd County, Iowa, and is a 20-acre site, near the north border of Charles City, Iowa, and is owned by H.E. Construction, Inc. The site lies within the 100-year flood plain of the Cedar River in the former location of a sand and gravel quarry. The site borders farmlands to the west, north, and east. Residential areas lie to the south of the site. White Farm Equipment Company disposed of approximately 650,000 cubic yards of wet scrubber sludge, foundry sands, baghouse dusts, and other industrial wastes at the site on an intermittent basis beginning in 1971. Allied Products Corporation presently owns White Farm Equipment Company.
In 1984, the IDNR required White Farm Equipment Company, which was leasing the site, to install four groundwater monitoring wells at the site to determine whether adverse environmental impacts had occurred from the dumping activities. In 1985, the EPA performed a Preliminary Assessment (PA) of the site which suggested that lead, cadmium, and phenols may be among the contaminants of concern at the site. The EPA found wastes in contact with groundwater at a depth of five to ten feet. In 1986, EPA conducted sampling which documented lead and cadmium in the shallow alluvial aquifer in close proximity to the Charles City municipal wells.
The site was placed on the NPL on August 30, 1990. In 1990, a Remedial Investigation/Feasibility Study (RI/FS) was completed by Allied Products Corporation in accordance with the Consent Order issued by EPA pursuant to section 104 and 122 of CERCLA. Evaluation of information gathered in the RI/FS resulted in the selection of a remedy in the Record of Decision (ROD) in 1990.
The remedy in the ROD included upgrading of the landfill, installation of additional groundwater monitoring wells, placement of extraction wells, an air stripper and discharge conveyance to Hyers Creek, extraction, and treatment of contaminated groundwater until the concentration of benzene in groundwater is reduced and maintained below one part per billion (ppb), inspection and maintenance of perimeter fencing, cover, and groundwater treatment facility, and long-term groundwater monitoring.
A Consent Decree between EPA and Allied Products Corporation and H.E. Construction, Inc. was finalized in 1991 and provided for the implementation by the responsible parties of the design and construction of the remedy.
In February 1993, Allied Products Corporation sampled six existing monitoring wells which had been designated for re-sampling by the Consent Decree for benzene, lead, cadmium, and chromium. The wells are located to assess the groundwater quality at or within the point of compliance. A second round of samples was collected in March 1993. Both sampling events confirmed that no groundwater contamination existed in these wells. An Explanation of Significant Differences (ESD) was written by EPA which explained that the groundwater treatment included in the remedy would not be required because the groundwater sampling had not shown any contamination. The groundwater monitoring schedule was curtailed and changed to include a round of groundwater sampling five years after the start of final cover construction and thereafter at five-year intervals. Certain monitoring wells not needed for the long-term monitoring were abandoned and plugged. Upgrading of the landfill cover was completed during 1994, and a final inspection was conducted in June 1995.
The five-year review was completed in September 1999 and indicated that the remedial objectives have been achieved. The remedial objectives included upgrading the existing landfill cover to comply with state and federal standards, well closure, installation of monitoring wells, and monitoring of groundwater to ensure that contaminants within the landfill do not migrate off site. The remedial action clean-up activities are consistent with the objectives of the NCP and will provide protection to human health and the environment as specified in the ROD. The responsible parties are required to monitor the groundwater at five-year intervals in accordance with the Consent Decree, and the sampling results have shown that no contamination has migrated off site.
Long-term maintenance and groundwater monitoring is being conducted by Allied Products Corporation. The operation and maintenance activities being conducted include groundwater monitoring at five-
The CERCLA requires a five-year review of all sites with hazardous substances remaining above health-based levels for unrestricted use of the site. The clean up of this site has included containment of contaminants within the landfill which will require that the five-year reviews continue in order to ensure the maintenance of the integrity of the cap. The five-year review which was conducted in September 1999 indicated that the landfill cap is performing as designed and sampling results show that there has not been any migration of contaminants off site.
A Community Relations Plan was completed for the site. The Proposed Plan and the Administrative Record were available for public review during the public comment period. A public meeting was held to present the Proposed Plan for the remedy and to answer questions and receive any written comments. A Record of Decision explaining the remedy for the site was signed by EPA on September 28, 1990.
Responsible parties or other persons have implemented all appropriate response actions required, as required in 40 CFR 300.425(e)(1)(i) for deletion of a site. All completion requirements for this site have been described in the Final Close-Out Report (COR). The Final COR documents the effectiveness of the post-remedial environmental monitoring and that the remedy remains protective. Site operation and maintenance activities will be performed by Allied Products Corporation as required by the Consent Decree. The state of Iowa has indicated their concurrence with the deletion of this site from the NPL. Therefore, EPA is proposing deletion of this site from the NPL. Documents supporting this action are available in the deletion docket.
Federal Communications Commission.
Proposed rule.
The Commission requests comments on a petition filed by Meadows Media, LLC, permittee of Station KTRL, Las Vegas, NM, seeking the substitution of Channel 275C3 for Channel 275C2 at Las Vegas, the reallotment of Channel 275C3 to Rowe, NM, as its first local aural service, and the modification of Station KTRL's construction permit accordingly. Channel 275C3 can be allotted to Rowe in compliance with the Commission's minimum distance separation requirements with a site restriction of 22.8 kilometers northeast, at coordinates 35-40-15 North Latitude; 105-33-06 West Longitude, to avoid short-spacings to Stations KIOT, Channel 273C, Los Lunas, NM, KAZX, Channel 275C, Kirtland, NM, and KTBL, Channel 277C, Albuquerque, NM. Petitioner is requested to provide further information concerning the status of Rowe as a community for allotment purposes and the areas and populations which will gain and lose service if the reallotment is granted.
Comments must be filed on or before October 16, 2000, and reply comments on or before October 31, 2000.
Federal Communications Commission, 445 12th Street, SW., Room TW-A325, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner, or its counsel or consultant, as follows:
Leslie K. Shapiro, Mass Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 00-155, adopted August 16, 2000, and released August 25, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.
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.
Notice of meeting.
The forum will provide the opportunity for the public to submit written comments on key issues related to captive supplies, for farm groups to offer evidence on the problems or benefits of captive supplies, and for two invited groups of panelists to debate and discuss questions related to captive supplies issues.
One panel will discuss concerns about packer ownership and control of livestock. A second panel will debate whether and how captive supplies affect competition. In addition, the second panel will synthesize the economic literature available on captive supplies.
The meeting will be open to the public. Public participation will be comprised of attendance at the meeting and participation in open question and answer sessions for panelists, as well as the submission of written statements addressing captive supply issues.
Written statements may be submitted at the forum or sent to: Shannon Hamm, U.S. Department of Agriculture, 1400 Independence Avenue, SW, STOP 3601, Washington, D.C. 20250-3601, telephone (202) 720-5759 or FAX (202) 205-9237, e-mail
The meeting will be physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Terri Henry, USDA, 202-720-0219, at least 5 days prior to the meeting date.
Economic Research Service, USDA.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13) and Office of Management and Budget (OMB) regulations at 5 CFR Part 1320 (60 FR 44987, August, 29, 1995), this notice announces the Economic Research Service's (ERS) intention to request approval for a new information collection from people that receive food assistance from emergency kitchens and food pantries.
Comments on this notice must be received by November 13, 2000 to be assured of consideration.
Contact Linda Kantor, Food and Rural Economics Division, Economic Research Service, U.S. Department of Agriculture, 1800 M Street, NW, Room N-3069, Washington, DC 20036-5831, 202-694-5456.
USDA, through the Food and Nutrition Service, administers several food assistance programs that help low-income households obtain adequate and nutritious diets. The largest USDA food assistance program, the Food Stamp Program, is designed to provide food assistance through normal channels of trade by providing low-income consumers with purchasing power to buy food at market prices from food retailers authorized to participate in the program. Other programs such as the National School Lunch Program (NSLP), the School Breakfast Program (SBP), and the Temporary Emergency Feeding Assistance Program (TEFAP) provide food assistance outside regular marketing channels. The NSLP and SBP provide cash subsidies and commodity assistance to schools to help provide low-cost or free lunches and breakfasts to schoolchildren. The TEFAP distributes commodity foods to State and local agencies for distribution to low-income households for home consumption, or to charitable organizations that provide meals for needy people.
The EFAS interacts closely with USDA food assistance programs by serving as a distribution outlet for TEFAP commodities and by providing temporary or supplemental food assistance to many of the same needy populations served by USDA programs. Through its Community Food Security Initiative, USDA is coordinating public and private efforts to increase the amount of surplus food channeled through EFAS providers.
EFAS providers are primarily private, nonprofit organizations that distribute groceries (unprepared foods) and meals (prepared foods) on a short-term or emergency basis to needy individuals and households who lack the resources to meet their own food needs. EFAS recipients include the homeless, the elderly, the unemployed, the working poor, and victims of natural disasters. Food pantries and emergency kitchens are important components of the EFAS. Food pantries are distribution centers that provide groceries and other basic supplies for use by recipients in their homes or at other locations away from the distribution sites. Emergency kitchens supply food for on-site consumption to people who do not live at the site. Both emergency kitchens and food pantries focus on providing assistance to needy households and individuals in their neighborhoods.
In order to fully assess the role of the emergency food assistance system and its interaction with USDA food assistance programs in meeting clients' nutrition needs, ERS is conducting an Emergency Food Assistance Study of providers and clients. The Provider Survey will provide important information on providers' characteristics, operations, service areas, and demand for assistance. The new data collection activity, the Client Survey, will complement the Provider Survey by collecting information from a national sample of people that visit emergency kitchens and/or food pantries sampled in the Provider Survey. The results from the entire study will be used to inform public policy about the emergency food assistance system and its interaction with USDA food assistance programs. For example, does the Emergency Food Assistance System substitute for or serve as a complement to existing USDA food assistance programs, like the Food Stamp Program. The study findings from EFAS providers and clients will be used by USDA to assess current food assistance programs and to plan future programs. The Client Survey has five primary objectives: (1) To characterize EFAS clients; (2) to determine the precipitating events that led clients to seek emergency food assistance; (3) to determine EFAS clients' participation in, knowledge of and experience and satisfaction with USDA food assistance and other Federal benefits programs; (4) to assess the food security status of EFAS clients; and (5) to determine the content and size of food baskets and meals received by EFAS clients.
Previous research on EFAS clients has been conducted, but has been limited by several factors: (1) Reduced scope or focus on one program
To fill these information gaps, ERS, working with Mathematica Policy Research, Inc., will survey clients of emergency kitchens and food pantries. The Provider Survey includes a national sample of EFAS providers. The Client Survey will survey individuals and families who are EFAS clients. The overall sampling process for the EFAS study uses a multi-stage design. In the Provider Survey, a random sample of 360 sampling areas were drawn from the 48 continental United States and the District of Columbia. The sample design for the Client Survey builds upon the design and sample frame developed and used for the Provider Survey. For the Client Survey, a representative sample of 60 Primary Sampling Units (PSUs) will be drawn from the 360 sampling areas to select emergency kitchens and food pantries. Contacts with providers will be made to inform them that their site has been selected for surveying clients, to verify current operations, and to enlist their cooperation. Clients that visit selected kitchens and pantries will be selected based on an interval sampling plan implemented at the EFAS site. To collect the Client Survey data, interviews will be conducted with a representative sample of clients using cell phones and computer-assisted telephone interviews (CATI).
Respondent burden will be minimized by using CATI methods to streamline the interviewing process and by carefully training and monitoring interview staff on survey procedures. Careful attention to instrument development to include only topics that are important to the agency's objectives will also minimize respondent burden. Responses will be confidential and voluntary. Data will only be reported in tabular form and analysis cells large enough to prevent identification of individuals. In addition, identifying information will be kept only by the contractor and will be released only to the contractor's internal staff who need it directly for the survey operations and data analysis.
All responses to this notice will be summarized and included in the request for Office of Management and Budget (OMB) approval. All comments will also become a matter of public record.
Rural Business-Cooperative Service, USDA.
Notice: Invitation to submit nominations.
The Rural Business-Cooperative Service (RBS) announces that it is accepting nominations for the Board of Directors of the National Sheep Industry Improvement Center for two directors' positions whose terms are expiring on February 13, 2001. Both positions are for voting members; one is for an active producer of sheep or goats and the other position is for a person with expertise in lamb, wool, goat, or goat product marketing. Board members manage and oversee the Center's activities. Nominations may only be submitted by National organizations that consist primarily of active sheep or goat producers in the United States and who have as their primary interest the production of sheep or goats in the United States. Nominating organizations should submit:
(1) Substantiation that the nominating organization is national in scope,
(2) The number and percent of members that are active sheep or goat producers,
(3) Substantiation of the primary interests of the organization, and
(4) An Advisory Committee Membership Background Information form (Form AD-755) for each nominee.
This action is taken to carry out section 759 of the Federal Agriculture Improvement and Reform Act of 1996, as amended, for the establishment of a National Sheep Industry Improvement Center.
The closing date for acceptance of nominations is November 6, 2000. Nominations must be received by, or postmarked, on or before, this date.
Submit nominations and statements on qualifications to Cooperative Services, RBS, USDA, 1400 Independence Ave., SW, Stop 3252, Room 4204, Washington, DC 20250-3252, Attn.: National Sheep Improvement Center, Nominations.
Dr. Thomas H. Stafford, Director, Cooperative Marketing Division, Cooperative Services, RBS, USDA, 1400 Independence Ave, SW, Stop 3252, Washington, DC 20250-3252, telephone (202) 690-0369, (This is not a toll free number.) FAX 202-690-2723, or e-mail thomas.stafford@usda.gov.
The Federal Agriculture Improvement and Reform Act of 1996, known as the 1996 Farm Bill, established a National Sheep Industry Improvement Center. The Center shall (1) promote strategic development activities and collaborative efforts by private and State entities to maximize the impact of Federal assistance to strengthen and enhance production and marketing of sheep or goat products in the United States; (2) optimize the use of available human capital and resources within the sheep or goat industries; (3) provide assistance to meet the needs of the sheep or goat industry for infrastructure development, business development, production, resource development, and market and environmental research; (4) advance activities that empower and build the capacity of the United States sheep or goat industry to design unique responses to special needs of the sheep or goat industries on both a regional and national basis; and (5) adopt flexible and innovative approaches to solving the long-term needs of the United States sheep or goat industry. The Center has a Revolving Fund established in the Treasury to carry out the purposes of the Center. Management of the Center is vested in a Board of Directors, which has hired an Executive Director and other staff to operate the Center.
The Board of Directors is composed of seven voting members of whom four are active producers of sheep or goats in the United States, two have expertise in finance and management, and one has expertise in lamb, wool, goat or goat product marketing. Both of the open positions are for voting members; one is for an active producer of sheep or goats in the United States and the other position is for a person with expertise in lamb, wool, goat, or goat product marketing. The Board also includes two non-voting members, the Under Secretary of Agriculture for Rural Development and the Under Secretary of Agriculture for Research, Education, and Economics. Board members will not receive compensation for serving on the Board of Directors, but shall be reimbursed for travel, subsistence, and other necessary expenses.
The Secretary of Agriculture shall appoint the voting members from the submitted nominations. Member's term of office shall be three years. Voting members are limited to two terms. The two positions for which nominees are sought are currently held by members serving their second term, thus they are not eligible to be re-nominated. The Board shall meet not less than once each fiscal year, but are likely to meet at least quarterly.
The statement of qualifications of the individual nominees is being obtained by using Form AD-755, “Advisory Committee Membership Background Information.” The requirements of this form are incorporated under OMB number 0505-0001.
The Materials Processing Equipment Technical Advisory Committee will meet on October 26, 2000, 9 a.m., Room 3884, in the Herbert C. Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to materials processing equipment and related technology.
1. Election of Chairman.
2. Presentation of papers or comments by the public.
3. Discussion on List Review (materials processing).
4. Discussion of matters properly classified under Executive Order 12958, dealing with the U.S. export control program and strategic criteria related thereto.
A limited number of seats will be available for the open session of the meeting. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any
The Assistant Secretary for Administration, with the concurrence of the General Counsel, formally determined on December 11, 1999, pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, that the series of meetings of the Committee and of any Subcommittees thereof, dealing with the classified materials listed in 5 U.S.C., 552b(c)(1) shall be exempt from the provisions relating to public meetings found in section 10(a)(1) and (a)(3), of the Federal Advisory Committee Act. The remaining series of meetings or portions thereof will be open to the public.
A copy of the Notice of Determination to close meetings or portions of meetings of the Committee is available for public inspection and copying in the Central Reference and Records Inspection Facility, Room 6020, U.S. Department of Commerce, Washington, DC 20230. For more information, contact Lee Ann Carpenter on (202) 482-2583.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
Attest:
Notice is hereby given that the application of the Erie-Western Pennsylvania Port Authority, to establish a general-purpose foreign-trade zone in the City of Erie (County of Erie), Pennsylvania (Doc. 6-2000, 65 FR 12970, 3/10/00; amended 7/14/00, 65 FR 43736), has been amended further to include an additional non-contiguous site (20 acres) at the Hardinger
As amended, the zone proposal will consist of a total of three sites (496 acres) in the City of Erie. The application otherwise remains unchanged.
The comment period is reopened until October 6, 2000. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below.
A copy of the application and the amendment and accompanying exhibits are available for public inspection at the following locations:
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to expand FTZ 84 is approved, subject to the Act and the Board's regulations, including § 400.28.
Import Administration, International Trade Administration, Department of Commerce
September 7, 2000.
Alex Amdur or Howard Smith at (202) 482-5346 and (202) 482-5193, respectively, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave, NW., Washington, DC 20230.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires the Department of Commerce (“the Department”) to make a preliminary determination within 245 days after the last day of the anniversary month of an order for which a review is requested and a final determination within 120 days after the date on which the preliminary determination is published. However, if it is not practicable to complete the review within these time periods, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the preliminary determination to a maximum of 365 days and for the final determination to 180 days (or 300 days if the Department does not extend the time limit for the preliminary determination) from the date of publication of the preliminary determination.
On February 28, 2000, the Department published a notice of initiation of administrative review of the antidumping duty order on brass sheet and strip from Canada, covering the period January 1, 1999 through December 31, 1999 (65 FR 10466). The preliminary results are currently due no later than October 2, 2000.
We determine that it is not practicable to complete the preliminary results of this review within the original time limit. Therefore, the Department is extending the time limit for completion of the preliminary results until no later than January 30, 2001.
This extension is in accordance with section 751(a)(3)(A) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of antidumping duty administrative review and intent not to revoke antidumping duty order in part.
In response to requests from three respondents and from the petitioners in the original investigation, the Department of Commerce (“the Department”) is conducting (the sixth) administrative reviews of the antidumping duty orders on certain
We preliminarily determine that sales have been made below normal value (“NV”). If these preliminary results are adopted in our final results of administrative reviews, we will instruct U.S. Customs to assess antidumping duties equal to the difference between export price (“EP”) or constructed export price (“CEP”) and NV.
Interested parties are invited to comment on these preliminary results. Parties who submit argument in this proceeding are requested to submit with the argument: (1) A statement of the issue; and (2) a brief summary of the argument.
September 7, 2000.
Marlene Hewitt ((Dongbu Steel Co., Ltd. (Dongbu) and Union Steel Manufacturing Co., Ltd. (Union)), Michael Panfeld ((Pohang Iron and Steel Co., (POSCO), Pohang Coated Steel Co., Ltd. (POCOS), and Pohang Steel Industries Co., Ltd. (PSI)—(the POSCO Group)), or James Doyle, Enforcement Group III—Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room 7866, Washington, D.C. 20230; telephone (202) 482-1385 (Hewitt), -0172 (Panfeld), or -0159 (Doyle).
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (“the Act”) by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department's regulations are references to the provisions codified at 19 CFR Part 351 (April 1999).
The Department published antidumping duty orders on certain cold-rolled and corrosion-resistant carbon steel flat products from Korea on August 19, 1993 (58 FR 44159). The Department published a notice of “Opportunity to Request an Administrative Review” of the antidumping duty orders for the 1998/99 review period on August 11, 1999 (64 FR 43649). On August 31, 1999, respondent POSCO and Dongbu requested that the Department conduct an administrative review of the antidumping duty orders on corrosion-resistant and cold-rolled carbon steel flat products from Korea. On August 31, 1999, petitioners in the original less-than-fair-value (LTFV) investigations (AK Steel Corporation; Bethlehem Steel Corporation; Inland Steel Industries, Inc.; LTV Steel Company; National Steel Corporation; and U.S. Steel Group A Unit of USX Corporation) requested that the Department conduct administrative reviews of the antidumping duty orders on cold-rolled and corrosion-resistant carbon steel flat products from Korea with respect to all three of the aforementioned respondents. We initiated these reviews on September 24,1999 (64 FR 53318) October 1, 1999.
Under section 751(a)(3) of the Act the Department may extend the deadline for completion of administrative reviews if it determines that it is not practicable to complete the review within the statutory time limit of 365 days. The Department extended the time limits for the preliminary results in these cases.
The Department is conducting these administrative reviews in accordance with section 751 of the Act.
The review of “certain cold-rolled carbon steel flat products” covers cold-rolled (cold-reduced) carbon steel flat-rolled products, of rectangular shape, neither clad, plated nor coated with metal, whether or not painted, varnished or coated with plastics or other nonmetallic substances, in coils (whether or not in successively superimposed layers) and of a width of 0.5 inch or greater, or in straight lengths which, if of a thickness less than 4.75 millimeters, are of a width of 0.5 inch or greater and which measures at least 10 times the thickness or if of a thickness of 4.75 millimeters or more are of a width which exceeds 150 millimeters and measures at least twice the thickness, as currently classifiable in the Harmonized Tariff Schedule (“HTS”) under item numbers 7209.15.0000, 7209.16.0030, 7209.16.0060, 7209.16.0090, 7209.17.0030, 7209.17.0060, 7209.17.0090, 7209.18.1530, 7209.18.1560, 7209.18.2550, 7209.18.6000, 7209.25.0000, 7209.26.0000, 7209.27.0000, 7209.28.0000, 7209.90.0000, 7210.70.3000, 7210.90.9000, 7211.23.1500, 7211.23.2000, 7211.23.3000, 7211.23.4500, 7211.23.6030, 7211.23.6060, 7211.23.6085, 7211.29.2030, 7211.29.2090, 7211.29.4500, 7211.29.6030, 7211.29.6080, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7215.50.0015, 7215.50.0060, 7215.50.0090, 7215.90.5000, 7217.10.1000, 7217.10.2000, 7217.10.3000, 7217.10.7000, 7217.90.1000, 7217.90.5030, 7217.90.5060, 7217.90.5090. Included in this review are flat-rolled products of non-rectangular cross-section where such cross-section is achieved subsequent to the rolling process (
The review of “certain corrosion-resistant carbon steel flat products” covers flat-rolled carbon steel products, of rectangular shape, either clad, plated, or coated with corrosion-resistant metals such as zinc, aluminum, or zinc-, aluminum-, nickel-or iron-based alloys, whether or not corrugated or painted, varnished or coated with plastics or other nonmetallic substances in addition to the metallic coating, in coils (whether or not in successively superimposed layers) and of a width of 0.5 inch or greater, or in straight lengths which, if of a thickness less than 4.75 millimeters, are of a width of 0.5 inch or greater and which measures at least 10 times the thickness or if of a thickness of 4.75 millimeters or more are of a width which exceeds 150 millimeters and measures at least twice the thickness, as currently classifiable in the HTS under item numbers 7210.30.0030, 7210.30.0060, 7210.41.0000, 7210.49.0030, 7210.49.0090, 7210.61.0000, 7210.69.0000, 7210.70.6030, 7210.70.6060, 7210.70.6090, 7210.90.1000, 7210.90.6000, 7210.90.9000, 7212.20.0000, 7212.30.1030, 7212.30.1090, 7212.30.3000, 7212.30.5000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7212.60.0000, 7215.90.1000, 7215.90.3000, 7215.90.5000, 7217.20.1500, 7217.30.1530, 7217.30.1560,
These HTS item numbers are provided for convenience and Customs purposes. The written descriptions remain dispositive.
The POR is August 1, 1998 through July 31, 1999. These reviews cover entries associated with sales of certain cold-rolled and corrosion-resistant carbon steel flat products by Dongbu, Union, and the POSCO Group (
We verified information provided by the POSCO Group with respect to sales, including on-site inspection of facilities of the manufacturer, the examination of relevant accounting and financial records, and selection of original documentation containing relevant information. Our verification results are outlined in the sales, and cost verification reports.
Section 776(a) of the Act provides that, if an interested party withholds information that has been requested by the Department, fails to provide such information in a timely manner or in the form or manner requested, significantly impedes a proceeding under the antidumping statute, or provides information which cannot be verified, the Department shall use, subject to sections 782(d) and (e) of the Act, facts otherwise available in reaching the applicable determination. Pursuant to section 782(e), the Department shall not decline to consider submitted information if all of the following requirements are met: (1) The information is submitted by the established deadline; (2) the information can be verified; (3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination; (4) the interested party has demonstrated that it acted to the best of its ability; and (5) the information can be used without undue difficulties.
We have applied partial adverse facts available with regard to two home market expense fields reported by the POSCO Group. First, POSCO did not report imputed credit expenses on a transaction-specific basis, despite having the ability to do so. Additionally, POSCO did not report certain rebate expenses on a transaction-specific basis, despite having the ability to do so. For both of these expenses, we asked POSCO to report the expense on a transaction-specific basis.
Section 776(a)(2)(B) of the Act requires the Department to use facts available when a party does not provide the Department with information by the established deadline or in the form and manner requested by the Department. Additionally, Section 776(b) of the Act provides that adverse inferences may be used when a party has failed to cooperate by not acting to the best of its ability to comply with the Department's requests for information.
Consistent with prior reviews, we excluded reported overrun sales in the home market from our sales comparisons because such sales were outside the ordinary course of trade.
According to section 351.403(d) of the Department's regulations, downstream sales to home market affiliates accounting for less than five (5) percent of total sales are normally excluded from the normal value calculation. Since the POSCO Group's sales to affiliated resellers exceeded the Department's 5 percent threshold, the Department has required the POSCO Group to report the home market downstream sales of the four affiliated service centers with the largest volume of sales of subject merchandise in each case. If the sales to the affiliated service centers did not pass the arm's length test, we used the resales made by these affiliated service centers. To test whether the POSCO Group's sales were made at arm's length, we compared the prices of sales to affiliated and unaffiliated customers net of all movement charges, direct selling expenses, discounts and packing. Where prices to the affiliated parties were on average 99.5 percent or more of the price to the unaffiliated party, we determined that sales made to the related party were at arm's length. Where no affiliated customer ratio could be calculated because identical merchandise was not sold to unaffiliated customers, we were unable to determine that these sales were made
In determining NV, based on our review of the submissions by Dongbu, the Department determined that Dongbu need not report “downstream” sales by affiliated resellers in the home market because such sales were less than the 5% threshold.
For purposes of these reviews, we are treating POSCO, POCOS, and PSI as affiliated parties and have “collapsed” them,
As we have determined in past administrative reviews, we are treating Union and Dongkuk Industries Co., Ltd. (“DKI”) as a single producer of certain cold-rolled carbon steel flat products.
On March 24, 2000, Petitioners alleged that Dongbu and Union are affiliated with POSCO based on Dongbu and Union's dependence on POSCO as their primary supplier of hot-rolled coil (HRC), the primary input in the production of subject merchandise. Petitioners indicated that these purchases are substantial and the Department should determine whether, under its recently articulated “greater-than-fifty-percent-dependence-for-five-years” test, Dongbu and Union are affiliated with POSCO.
We preliminarily determine that the record evidence does not show a close supplier relationship between POSCO, Dongbu and Union. Specifically, the record evidence shows that both Union and Dongbu source a significant supply of hot-rolled coil from other companies. Thus, the Department finds no affiliation between Union, Dongbu and POSCO. This is consistent with a previous review in which petitioners also alleged affiliation based on a close supplier relationship. In that case we determined that there was no affiliation.
In accordance with section 771(16) of the Act, we considered all cold-rolled carbon steel flat products produced by the respondents, covered by the descriptions in the “Scope of the Reviews” section of this notice,
For certain product characteristics (
Where there were no sales of identical merchandise in the home market to compare to U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the characteristics listed in Appendix V of the Department's antidumping questionnaire. In making the product comparisons, we matched foreign like products based on the physical characteristics reported by the respondent. Where sales were made in the home market on a different weight basis from the U.S. market (theoretical versus actual weight), we converted all quantities to the same weight basis, using the conversion factors supplied by the respondents, before making our fair-value comparisons.
To determine whether sales of certain cold-rolled and corrosion-resistant carbon steel flat products by the respondents to the United States were made at less than normal value, we compared the export price (“EP”) or constructed export price (“CEP”) to the normal value (“NV”), as described in the “Export Price/Constructed Export Price” and “Normal Value” sections of this notice. In accordance with section 777A(d)(2) of the Act, we calculated monthly weighted-average prices for NV and compared these to individual U.S. transactions.
On November 12, 1999, the petitioners alleged that the Korean home market should not be used to determine NV because there were economic distortions constituting a “particular market situation” in Korea during the period of review. Petitioners allege that economic distortions make it impossible to obtain reliable measures of normal value in Korea, or to make proper comparisons of normal value with U.S. sales. This economic distortion, according to petitioners, is: The Government of Korea (“GOK”) controls home market prices of cold-rolled and corrosion-resistant steel. Petitioners propose that the Department instead rely upon third country sales as the basis for normal value.
We preliminarily determine that the information submitted by petitioners and the questionnaire responses by the respondents do not show that there is a particular market situation in Korea that warrants disregarding the home market in this case. Although updated, petitioners provided the same type of evidence we previously considered to
On August 31, 1999, POSCO submitted a request, in accordance with 19 CFR 351.222(e), that the Department revoke the order covering cold-rolled carbon steel flat products from Korea with respect to its sales of this merchandise. In accordance with 19 CFR 351.222(e), these requests were accompanied by certifications from POSCO that it had not sold the subject merchandise at less than NV for a three-year period and in commercial quantities, including this review period, and would not do so in the future. POSCO also agreed to immediate reinstatement in the relevant antidumping order, as long as any firm is subject to the order, if the Department concludes under 19 CFR 351.216 that, subsequent to revocation, POSCO sold the subject merchandise at less than NV.
The Department conducted verifications of POSCO's responses for this period of review. In the two prior reviews of this order we determined that POSCO sold cold-rolled carbon steel flat products from Korea at not less than NV or at
However, in determining whether a requesting party is entitled to a revocation inquiry, the Department must be able to determine that the company has continued to participate meaningfully in the U.S. market during each of the three years at issue.
For purposes of revocation, the Department must be able to determine that past margins reflect a company's normal commercial activity. Sales during the POR which, in the aggregate, are an abnormally small quantity do not provide a reasonable basis for determining that the discipline of the order is no longer necessary to offset dumping. As the Department has previously stated, the commercial quantities requirement is a threshold matter.
Based on the current record, we find that POSCO did not sell merchandise in the United States in commercial quantities during the fourth administrative review (one of the three consecutive reviews cited by POSCO to support its request for revocation). During the POR covered by that review (August 1996 though July 1997), POSCO appeared to have made only one sale in the United States. Moreover, the total tonnage of this sale was small.
Consequently, although POSCO received a
It is the Department's current practice normally to use the invoice date as the date of sale, although we may use a date other than the invoice date if we are satisfied that a different date better reflects the date on which the exporter or producer establishes the material terms of sale.
We calculated the price of U.S. sales based on CEP, in accordance with section 772(b) of the Act, except for U.S. sales made by the POSCO Group to one customer, which we have classified as “export price” sales. The Act defines the term “constructed export price” as “the price at which the subject merchandise is first sold (or agreed to be sold)
In determining whether to classify sales as either EP or CEP, the Department must examine the totality of the circumstances surrounding the U.S. sales process, and assess whether the reviewed sales were made “in the United States” for purposes of section 772(b) of the Act. In the instant case, the record establishes that Dongbu, the POSCO Group, and Union's affiliates in the United States (1) took title to the subject merchandise; and (2) invoiced and received payment from the unaffiliated U.S. customers. Thus, as the record stands, because these functions are more than ancillary the Department has determined that these sales should be classified as CEP transactions.
For Dongbu, Union, and the POSCO Group, we calculated CEP based on packed prices to unaffiliated customers in the United States. Where appropriate, we made deductions from the starting price for foreign inland freight, foreign inland insurance, foreign brokerage and handling, international freight, marine insurance, U.S. inland freight, U.S. brokerage and handling, U.S. Customs duties, commissions, credit expenses, warranty expenses, inventory carrying costs incurred in the United States, and other indirect selling expenses. Pursuant to section 772(d)(3) we made an adjustment for CEP profit. Where appropriate, we added interest revenue to the gross unit price.
Consistent with the Department's normal practice, we added the reported duty drawback to the gross unit price. We did so in accordance with the Department's long-standing test, which requires: (1) That the import duty and rebate be directly linked to, and dependent upon, one another; and (2) that the company claiming the adjustment demonstrate that there were sufficient imports of imported raw materials to account for the duty drawback received on the exports of the manufactured product.
For POSCO, we calculated EP for one customer located outside the United States based on packed prices to unaffiliated purchasers in the United States. We made deductions for foreign inland freight, brokerage and handling, ocean freight, marine insurance, U.S. inland freight (where applicable), and U.S. Customs duties in accordance with section 772(c)(2)(A) of the Act. Additionally, we added to the U.S. price an amount for duty drawback. Pursuant to section 772(c)(1)(B) of the Act.
Based on a comparison of the aggregate quantity of home market and U.S. sales, we determined that the quantity of the foreign like product sold in the exporting country was sufficient to permit a proper comparison with the sales of the subject merchandise to the United States, pursuant to section 773(a) of the Act. Therefore, in accordance with section 773(a)(1)(B)(i) of the Act, we based NV on the price at which the foreign like product was first sold for consumption in the home market, in the usual commercial quantities and in the ordinary course of trade.
Where appropriate, we deducted rebates, discounts, inland freight (offset, where applicable, by freight revenue), inland insurance, and packing. We made adjustments to NV, where appropriate, for differences in credit expenses (offset, where applicable, by interest income), warranty expenses, post-sale warehousing, and differences in weight basis. We also made adjustments, where appropriate, for home market indirect selling expenses to offset U.S. commissions in CEP comparisons.
We also increased NV by U.S. packing costs in accordance with section 773(a)(6)(A) of the Act. We made adjustments to NV for differences in cost attributable to differences in physical characteristics of the merchandise, pursuant to section 773(a)(6)(C)(ii) of the Act. In accordance with the Department's practice, where all contemporaneous matches to a U.S sale observation resulted in difference-in-merchandise adjustments exceeding 20 percent of the cost of manufacturing (“COM”) of the U.S. product, we based NV on constructed value (“CV”).
In accordance with section 773(a)(1)(B)(i) of the Act and the Statement of Administrative Action (“SAA”) at 829-831, to the extent practicable, the Department will calculate NV based on sales at the same level of trade as the U.S. sales (either EP or CEP). When the Department is unable to find sales in the comparison market at the same level of trade as the U.S. sale(s), the Department may compare sales in the U.S. and foreign markets at different levels of trade, and adjust NV if appropriate. The NV level of trade is that of the starting-price sales in the home market. As the Department explained in
To determine whether comparison market NV sales are at a different Level of Trade (LOT) than EP or CEP, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and unaffiliated customer. If the comparison-market sales are at a different level of trade and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the level of trade of the export transaction, we make a level-of-trade adjustment under section 773(a)(&)(A) of the Act.
When NV is established at a level of trade which constitutes a more advanced stage of distribution than the level of trade of the CEP, we adjust NV under section 773(a)(7)(B) of the Act (the CEP-offset provision).
In its questionnaire responses, Dongbu states that there were no significant differences in its selling activities by customer categories within or between each market. Therefore, Dongbu states that it is not distinguishing between LOT for these reviews and that it is not claiming a
Union argues that, with the Department's classification of Union's U.S. sales as CEP sales, and its view of Dongkuk International Inc.'s (“DKA's”) role in the sales process as more than ancillary for the U.S. sales, it is incumbent on the Department to recognize that U.S. sales and home market sales are at different levels of trade. Furthermore, Union notes that because the difference in the level of trade cannot be quantified, Union is eligible for a CEP offset. Union states that home market sales are at a different level of trade from CEP sales, a level representing a more advanced stage of distribution. Union asserts that the Department's practice in a CEP situation is to compare the level of trade of the U.S. sale after the deduction of the selling expenses with the level of trade of the home market product with no deduction; therefore, the indirect selling expenses incurred for the selling functions associated with the U.S. sale,
In identifying the level of trade for home market sales, we consider the selling functions reflected in the starting price of home market sales before any adjustments, pursuant to section 773(a)(1)(B)(i) of the Act. Union's description of selling functions in the home market makes no distinction with regard to customer categories or channels of trade, and there is no evidence on the record indicating that such functions vary within the home market. Thus, we conclude that all of Union's home market sales are at a single level of trade. In identifying the level of trade for CEP sales, we considered only the selling activities reflected in the U.S. price after deduction of expenses and profit under section 772(d) of the Act. Based upon our review of the activities, we also conclude that all of the U.S. sales are at a single level of trade.
We find that Union performed similar functions for its U.S. sales to DKA as it did for its sales to home market customers. Although the expenses related to DKA's activities have been deducted from CEP, the expenses incurred by Union in selling to DKA are still reflected in CEP. Because we find there are no substantive differences in selling functions provided by Union for its home market customers as compared to DKA, there is no difference in level of trade and, therefore, no basis for granting a level of trade adjustment or a CEP offset. This is consistent with our treatment of level of trade for Union in prior administrative reviews.
In its questionnaire responses, the POSCO Group stated that its home-market sales by affiliated service centers were at a different level of trade than its other home-market sales and its U.S. sales (regardless of the customer category). The respondent indicated that the service centers provide certain selling functions to all of their customers, while POSCO, POCOS and PSI provide a different set of selling functions to all of their customers (including the service centers).
In order to confirm the presence of separate levels of trade within or between the U.S. and home markets, we examined the respondent's questionnaire responses for indications of substantive differences in selling and marketing functions.
In its November 3, 1999 and its January 28, 2000 section A responses, the POSCO Group claimed that there are two channels of distribution in the home market: one channel of distribution consists of sales made by POSCO, POCOS, and PSI, while they claim that a second channel of distribution consists of the sales made by the affiliated service centers. Our analysis of the questionnaire responses and review of the sales functions at the service center leads us to conclude that the cumulative functions of the POSCO Group and the service centers for sales made by the service centers are essentially the same as the cumulative functions of the POSCO Group for sales made by the POSCO Group (
At the time the questionnaires were issued in these reviews, the fifth annual administrative reviews were the most recently completed segments of these proceedings in which each of the three respondents had participated. 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 each of the three respondents in the fifth reviews, we found reasonable grounds in these reviews to believe or suspect that those respondents made sales in the home market at prices below the cost of producing the merchandise. We therefore initiated cost investigations with regard to Dongbu, Union, and the POSCO Group, in order to determine whether the respondents made home market sales during the POR at prices below their cost of production (COP) within the meaning of section 773(b)(2)(A)(ii) of the Act.
Before making concordance matches, we conducted the COP analysis described below.
We calculated the COP for Dongbu, Union, and the POSCO Group based on the sum of each respondent's cost of materials and fabrication for the foreign like product, plus amounts for home-market selling expenses, general, and administrative expenses (“SG&A”), and packing costs in accordance with section 773(b)(3) of the Act.
We relied on Dongbu, Union, and POSCO's information as submitted with the exception of POSCO, where we adjusted the cost of manufacturing to account for product-specific variances which POSCO calculated on an overall basis.
We used the respondents' weighted-average COP, as adjusted (see above), for the period July 1998 to June 1999. We compared the weighted-average COP figures to home-market sales of the foreign like product as required under section 773(b) of the Act. In determining whether to disregard home-market sales made at prices below the COP, as required under section 773(b)(1)2(A)&(B)of the Act, we examined whether (1) within an extended period of time, such sales were made in substantial quantities, and (2) such sales were made at prices which permitted the recovery of all costs within a reasonable period of time. On a product-specific basis, we compared the COP to the home-market prices (not including VAT), less any applicable movement charges, discounts, and rebates.
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of a respondent's sales of a given product were at prices less than the COP, we did not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product during the POR were at prices less than the COP, we found that sales of that model were made in “substantial quantities” within a reasonable period of time, in accordance with sections 773(b)(2)(B) and (C) of the Act, and were not at prices which would permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act. In such cases, we disregarded the below-cost sales in accordance with section 773(b)(1) of the Act.
In accordance with section 773(e) of the Act, we calculated constructed value (CV) for Dongbu, Union, and the POSCO Group based on the sum of respondents' cost of materials, fabrication, SG&A, including interest expenses, U.S. packing costs, and profit. In accordance with section 773(e)(2)(A) of the Act, we based SG&A and profit on the actual amounts incurred and realized by the respondent in connection with the production and sale of the foreign like product in the ordinary course of trade, for consumption in the foreign country. For selling expenses, we used the weighted-average home-market selling expenses. As noted in the “Calculation of COP” section of this notice, we made adjustments to the reported COMs of the POSCO Group. We also made adjustments, where appropriate, for home-market indirect selling expenses to offset U.S. commissions in CEP comparisons.
For purposes of the preliminary results, we made currency conversions based on the exchange rates in effect on the dates of the U.S. sales as published by the Federal Reserve Bank of New York. Section 773A(a) of the Act directs the Department to use a daily exchange rate in effect on the date of sale of subject merchandise in order to convert foreign currencies into U.S. dollars, unless the daily rate involves a “fluctuation.” In accordance with the Department's practice, we have determined, as a general matter, that a fluctuation exists when the daily exchange rate differs from a benchmark by 2.25 percent.
As a result of these reviews, we preliminarily determine that the following weighted-average dumping margins exist:
Upon issuance of the final results of this review, the Department shall determine, and the U.S. Customs Service shall assess, antidumping duties on all appropriate entries. Exporter/importer-specific assessment rates shall be calculated in accordance with 19 CFR 351.212(b). This is done by dividing the total dumping margins for the reviewed sales by the total entered value of those reviewed sales for each importer. The U.S. Customs Service shall be directed, at the issuance of the final results of this review, to assess the resulting percentage margin against the entered customs values for the subject merchandise on each of that importer's
The following cash deposit requirements will be effective upon publication 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, as provided for by section 751(a)(1) of the Act: (1) the cash deposit rate for each respondent will be the rate established in the final results of these administrative reviews (except that no deposit will be required for firms with 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 administrative reviews and notice are in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results in the antidumping duty administrative reviews of certain cut-to-length carbon steel plate from Germany.
In response to requests from Bethlehem Steel Corporation, U.S. Steel Group, a unit of USX Corporation (collectively, “Petitioners”) and Novosteel SA (“Novosteel”), the U.S. Department of Commerce (“Department”) is conducting administrative reviews of the antidumping duty orders on certain cut-to-length carbon steel plate (“CTL plate”) from Germany for the periods August 1, 1997 through July 31, 1998 and August 1, 1998 through July 31, 1999. The Department preliminarily determines that a 36.00 dumping margin exists for Reiner Brach GmbH & Co. KG's (“Reiner Brach”) sales of CTL plate in the United States for the period August 1, 1997 through July 31, 1998, and that a 36.00 dumping margin exists for Reiner Brach's sales of CTL plate in the United States for the period August 1, 1998 through July 31, 1999. The preliminary results are listed in the section titled “Preliminary Results of the Reviews,”
September 7, 2000.
Robert A. Bolling, Enforcement Group III, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230, telephone 202-482-3434, fax 202-482-1388.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations codified at 19 CFR Part 351 (1999).
On August 19, 1993, the Department published the antidumping duty order on certain cut-to-length carbon steel plate from Germany.
On October 4, 1999, the Department issued Novosteel its questionnaire for the 97-98 Review and the 98-99 Review. On December 9, 1999, Novosteel responded to Section A of the Department's questionnaires. In the Section A response, sales documentation demonstrated that the producer of the subject merchandise, Reiner Brach had knowledge that the subject merchandise was being exported to the United States.
Based on the Novosteel's questionnaire responses, the Department determined that Reiner Brach not only was the producer of the subject merchandise, but also had knowledge that the products were destined for the United States, and that, thus, the sale between Reiner Brach and Novosteel was the appropriate link in the sales chain upon which the Department should be conducting its antidumping analysis regarding these sales of the subject merchandise in the United States during the aforementioned PORs. While the result of this change in focus is that the margin calculated in these reviews will be that of Reiner Brach, rather than of Novosteel,
On February 15, 2000, the Department issued Reiner Brach questionnaires for the 97-98 and the 98-99 Reviews. On March 15, 2000, the Department received Reiner Brach's response to Section A of the Department's questionnaire, and on April 6, 2000 the Department received Reiner Brach's response to Sections B and C of the Department's questionnaire.
On April 7, 2000, the Department determined that it was not practicable to complete these reviews within the normal time frame. Therefore, the Department extended the time limits for these administrative reviews to August 30, 2000.
On April 26, 2000, we requested Reiner Brach to provide the Department with its missing variable cost of manufacturing (“VCOM”) and total cost of manufacturing (“TCOM”) data. On May 8, 2000, Reiner Brach provided the Department with its VCOM and TCOM data. On May 17, 2000, the petitioners alleged that Reiner Brach was selling the subject merchandise in the home market below its cost of production. On May 25, 2000, the Department issued a supplemental questionnaire on Sections A, B, and C to Reiner Brach. On June 5, 2000, the Department initiated a cost of production inquiry in this case, for both review periods, and requested that Reiner Brach respond to Section D of the questionnaire. On June 15, 2000, Reiner Brach responded to the Department's supplemental questionnaire of May 25, 2000. On June 29, 2000, the Department received Reiner Brach's response to Section D of the Department's questionnaire. On July 11 and 17, 2000, the Department issued a supplemental questionnaire on Section D, and additional questions on Sections A-C. On July 24, 2000, Reiner Brach responded to the Department's supplemental questionnaires of July 11 and July 17, 2000.
The products covered by these administrative reviews constitute one “class or kind” of merchandise: certain cut-to-length carbon steel plate. These products include hot-rolled carbon steel universal mill plates (
The periods of review (“POR”) for these administrative reviews are August 1, 1997 through July 31, 1998 and August 1, 1998 through July 31, 1999.
In accordance with section 782(i) of the Act, the Department conducted verification of Reiner Brach's data for the 97-98 and 98-99 PORs using standard verification procedures, including on-site inspection of the manufacturer's facilities, examination of relevant sales and financial records, and selection of original documentation containing relevant information.
Section 776(a)(2) of the Act provides that, if an interested party: (A) Withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested; (C) significantly impedes a proceeding under the antidumping statute; or (D) provides such information but the information cannot be verified, the Department shall use facts otherwise available in reaching the applicable determination.
At the verification of Reiner Brach, the Department discovered that Reiner Brach provided data on only a minimal portion of its home market sales of the foreign like product for each period of review. Reiner Brach stated at verification that it had only reported a minimal portion of its home market sales because it interpreted the Department of Commerce's questionnaire to mean that Reiner Brach only had to report identical sales in the home market that matched its U.S. sales.
The Department also discovered at verification that Reiner Brach had failed to provide accurate and complete cost of production information. Reiner Brach stated at verification that it had reported costs for both PORs based on the same cost data. Although, according to a company official, Reiner Brach had the ability to provide its costs for each POR, it nevertheless did not do so.
Accordingly, Reiner Brach failed to provide the Department with information which the Department had requested and needed to calculate a dumping margin. Therefore, we determine that Reiner Brach withheld information requested by the Department. Therefore, the Department finds it necessary to use the facts otherwise available for Reiner Brach, in accordance with section 776(a)(2)(A) of the Act. Because the Department lacks both a useable home market sales database and a reliable cost database, the information provided cannot serve as a reliable basis for calculating a margin for Reiner Brach. Consequently, section 782(e) of the Act is inapplicable. Therefore, the Department is basing the results of both reviews on total facts available.
In selecting from among the facts otherwise available, section 776(b) of the Act provides that adverse inferences may be used when a party has failed to cooperate by not acting to the best of its ability to comply with the Department's requests for information.
Section 776(b) of the Act states that an adverse inference may include reliance on information derived from the petition or any other information placed on the record.
Commerce * * * may employ adverse inferences about the missing information to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully. In employing adverse inferences, one factor the agencies will consider is the extent to which a party may benefit from its own lack of cooperation. SAA at 870.
In this case, the calculated margin information from the less-than-fair-value investigation represents appropriate information for determining a dumping margin. The Department has determined that using this rate from the less-than-fair-value investigation as an adverse inference is proper because it is the highest calculated rate in this proceeding for certain cut-to-length plate from Germany and, as the “all others” rate in this case, is the rate currently applicable to exports by Reiner Brach and Novosteel. Therefore, use of this information will ensure that the respondent does not obtain a more favorable result by failing to cooperate in these administrative reviews.
Section 776(c) of the Act provides that, when the Department relies on secondary information (which, as explained in the SAA at 870, includes information from the petition or the investigation, or any previous reviews) as facts otherwise available, it must, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. The SAA clarifies that “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value (see SAA at 870). The SAA also states that independent sources used to corroborate such evidence may include, for example, published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation (see SAA at 870).
The selected margin was a calculated rate based on information provided by one company, AG der Dillinger Huttenwerke (“Dillinger”).
We preliminarily determine that the following percentage weighted-average margins exist for the periods August 1, 1997 through July 31, 1998 and August 1, 1998 through July 31, 1999:
The Department will disclose calculations performed within five days of the date of publication of this notice to the parties of this proceeding in accordance with 19 CFR 351.224(b). An interested party may request a hearing within 30 days of publication of these preliminary results.
Upon issuance of the final results of the review, the Department will determine, and Customs will assess, antidumping duties on all appropriate entries. The Department will issue appraisement instructions directly to Customs. The final results of this review will be the basis for the assessment of antidumping duties on entries of merchandise covered by the results and for future deposits of estimated duties.
Furthermore, the following 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 of the final results of this administrative review, as provided in section 751(a)(1) of the Act: (1) The cash deposit rate for Reiner Brach, the only reviewed company, will be that established in the final results of the 98-99 Review; (2) for previously reviewed or investigated companies not covered in this review, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established in the most recent period for the manufacturer of the merchandise; and (4) if neither the exporter nor the manufacturer is a firm covered in this or any previous review conducted by the Department, the cash deposit rate will continue to be the “all others” rate established in the LTFV investigation, which was 36.00 percent.
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice is published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of antidumping duty administrative review and final partial recision of review.
In response to requests from two respondents and the petitioners, the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain cut-to-length carbon steel plate from Romania. This review covers one manufacturer/exporter of the subject merchandise. The period of review (POR) is August 1, 1998 through July 31, 1999.
We preliminarily determine that Metalexportimport S.A. made no sales of subject merchandise below normal value (NV). If these preliminary results are adopted in our final results of administrative review, we will instruct the U.S. Customs Service to liquidate all of Metalexportimport's entries at an antidumping rate of zero percent. We also determine that Windmill International had no shipments during the POR. Accordingly, as of the publication of this notice, we are making the final rescission of the review with respect to this company.
Interested parties are invited to comment on these preliminary results. Parties who submit argument in this proceeding are requested to submit with the argument: (1) A statement of the issue; and (2) a brief summary of the argument.
September 7, 2000.
Fred Baker or Robert James, Enforcement Group III—Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230;
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Tariff Act) are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all references to the Department's regulations are to part 351 of 19 CFR (1999).
The Department published an antidumping duty order on certain cut-to-length carbon steel plate from Romania on August 19, 1993 (58 FR 44167). The Department published a notice of “Opportunity to Request an Administrative Review” of the antidumping duty order for the period August 1, 1998 through July 31, 1999 on August 11, 1999 (64 FR 43649). On August 30, 1999, respondents Metalexportimport, S.A. (MEI) and Sidex S.A. (Sidex) requested that the Department conduct an administrative review. On August 31, 1999, Bethlehem Steel Corporation and U.S. Steel Group, a Unit of USX Corporation (petitioners) requested an administrative review of Windmill International PTE Ltd. of Singapore, Windmill International Romania Branch, and Windmill International Ltd. (USA) (collectively Windmill). We initiated the review with respect to MEI and Sidex on October 1, 1999 (64 FR 53318). We initiated the review with respect to Windmill on November 4, 1999 (64 FR 60161).
In response to our request for information, Windmill reported that it had no sales or shipments during the POR.
Under the Tariff Act, the Department may extend the deadline for completion of administrative reviews if it determines that it is not practicable to complete the review within the statutory time limit of 245 days. On April 13, 2000, the Department extended the time limit for the preliminary results in this case.
The Department is conducting this administrative review in accordance with section 751(a) of the Tariff Act.
The products covered in this review include hot-rolled carbon steel universal mill plates (
These HTS item numbers are provided for convenience and customs purposes. The written description remains dispositive.
The POR is August 1, 1998 through July 31, 1999. This review covers sales of certain cut-to-length carbon steel plate by MEI produced by Sidex.
As discussed in the “Normal Value” section, below, we have determined that Romania is a non-market economy (NME). It is the Department's policy to assign all exporters of the merchandise subject to review in NME countries a single rate, unless an exporter can demonstrate an absence of government control, both in law (de jure) and in fact (de facto), with respect to exports. To establish whether an exporter is sufficiently independent of government control to be entitled to a separate rate, the Department analyzes the exporter in light of the criteria established in
Evidence relevant to a de facto absence of government control with respect to exports is based on four factors, whether the respondent: (1) Sets its own export prices independent from the government and other exporters; (2) can retain the proceeds from its export sales; (3) has the authority to negotiate and sign contracts; and (4) has autonomy from the government regarding the selection of management.
MEI and Sidex both responded to the Department's request for information regarding separate rates by providing the requested documentation. We have determined that the evidence on the record demonstrates an absence of government control, both in law and in fact, with respect to MEI's and Sidex's exports, in accordance with the criteria identified in
We calculated the price of United States sales based on EP, in accordance with section 772(a) of the Tariff Act. We based EP on the price from MEI to its unaffiliated U.S. customer.
We calculated EP based on packed prices to unaffiliated customers in the United States. Where appropriate, we made deductions from the starting price
MEI reported the invoice date (as kept in the ordinary course of business) as the date of sale. However, that invoice date was after the date of shipment, and under the Department's practice the date of sale cannot be after the date of shipment.
For merchandise exported from an NME country, section 773(c)(1) of the Tariff Act provides that the Department shall determine normal value (NV) using a factors of production method if (1) the merchandise is exported from an NME and (2) available information does not permit the calculation of NV using home market or third-country prices under section 773(a) of the Tariff Act. The Department has treated Romania as an NME country in all previous antidumping cases.
Under the factors of production method, we are required to value the NME producer's inputs in a comparable market economy country that is a significant producer of comparable merchandise. We determined that Indonesia is at a level of economic development comparable to that of Romania. We also found that Indonesia is a significant producer of cut-to-length carbon steel plate. Therefore, for this review, we have used Indonesian prices to value the factors of production except where the factor was purchased from a market economy supplier and paid for in a market economy currency. For a further discussion of the Department's selection of a surrogate country, see the memorandum from Jeff May to Richard O. Weible: “Cut-to-Length Carbon Steel Plate (“CLCSP”) from Romania: Nonmarket Economy Status and Surrogate Country Selection,” dated April 7, 2000.
We selected, where possible, publicly available values from Indonesia which were: (1) Average non-export values; (2) representative of a range of prices within the POR or most contemporaneous with the POR; (3) product specific; and (4) tax-exclusive. We valued the factors of production as follows:
•
•
•
•
Where any of the factor values were from years other than 1999, we applied an inflator or deflator, as appropriate, based on the consumer price index so that all factor values would approximate 1999 costs. For a complete description of the factor values used, see the preliminary results analysis memorandum.
We also made an offset, where appropriate, for byproducts sold. We valued all byproducts using U.N. Commodity Trade Statistics.
As a result of this review, we preliminarily determine that a margin of zero percent exists for sales of subject merchandise by MEI for the period August 1, 1998 through July 31, 1999. We are making the final rescission in this review with respect to Windmill International because we have determined from our review of Customs import data that it had no entries during the POR, and no parties presented contrary information.
Within five days of the date of publication of this notice, in accordance with 19 CFR 351.224, the Department will disclose its calculations. Any interested party may request a hearing within 30 days of publication. Any hearing, if requested, will be held 44 days after the date of publication, or the first working day thereafter. Interested parties may submit written comments (case briefs) no later than 30 days after the date of publication. Rebuttal comments (rebuttal briefs), which must be limited to issues raised in the case briefs, may be filed no later than 37 days after the date of publication of this notice. 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, not to exceed five pages in length. The Department will publish a notice of the final results of the administrative review, which will include the results of its analysis of issues raised by the parties, within 120 days of publication of these preliminary results.
The Department shall determine, and the U.S. Customs Service shall assess,
Furthermore, the following cash deposit requirements will be effective upon publication 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, as provided for by section 751(a)(2)(C) of the Tariff Act: (1) The cash deposit rate for shipments by the reviewed firms will be the rates established in the final results of this administrative review; (2) for any previously reviewed Romanian firm and non-Romanian exporter with a separate rate, the cash deposit rate will be the company-specific rate established for the most recent period; (3) for all other Romanian exporters, the cash deposit rate will be 75.04 percent, the Romania-wide rate made effective by the final determination in the less-than-fair-value investigation (
These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a 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 in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act.
Import Administration, International Trade Administration, Department of Commerce.
September 7, 2000.
Maria Dybczak or Rick Johnson, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-5811, and (202) 482-3818, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations at 19 CFR Part 351 (1999).
The Department of Commerce (“the Department”) is conducting a new shipper review of the antidumping duty order on glycine from the People's Republic of China (“PRC”) in response to a request by a PRC exporter of subject merchandise, Nantong Dongchang Chemical Industry Corp. (“Nantong”). This review covers shipments of merchandise to the United States during the period of March 1, 1999 through August 31, 1999. We have preliminarily determined that sales have been made below normal value (“NV”). If these preliminary results are adopted in our final results, we will instruct the U.S. Customs Service to assess antidumping duties on entries subject to this review.
The Department published in the
Nantong's request was accompanied by information and certifications establishing the date on which it first shipped the subject merchandise. Nantong also claimed it had no affiliated companies which exported glycine from the PRC during the POI. In addition, Nantong certified that its export activities are not controlled by the central government. Based on the above information, the Department initiated a new shipper review covering Nantong (
The product covered by this review is glycine, which is a free-flowing crystalline material, like salt or sugar. Glycine is produced at varying levels of purity and is used as a sweetener/taste enhancer, a buffering agent, reabsorbable amino acid, chemical intermediate, and a metal complexing agent. Glycine is currently classified under subheading 2922.49.4020 of the Harmonized Tariff Schedule of the United States (“HTSUS”). This proceeding includes glycine of all purity levels. Although the HTSUS subheading is provided for convenience and Customs purposes only, the written description of the scope of this review is dispositive. This review covers the period March 1, 1999 through August 31, 1999.
As provided in section 782(i) of the Act, we verified information provided by Nantong, which is both the producer and exporter of the subject merchandise, using standard procedures, including on-site inspection of the manufacturer's facilities and the examination of relevant sales and financial records. Our verification results are outlined in the public version of the verification report, which is on file in the Central Records Unit (room B-099 of the Main Commerce Building).
Nantong has requested a separate, company-specific rate. In its questionnaire response, Nantong states that it is an independent legal entity. To establish whether a company operating in a nonmarket economy country is sufficiently independent to be entitled to a separate rate, the Department analyzes each exporting entity under the test established in Final Determination of Sales at Less Than Fair Value: Sparklers from the People's Republic of China, 56 FR 20588 (May 6, 1991), as amplified by Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People's Republic of China, 59 FR 22585 (May 2, 1994). Under this policy, exporters in nonmarket economies (“NMEs”) are entitled to separate, company-specific margins when they can demonstrate an absence of government control, both in law (“
With respect to the absence of
With respect to the existence or absence of de facto control over export activities, Nantong indicates that the company's management is responsible for all decisions regarding the determination of export prices, profit distribution, marketing strategy, and contract negotiations. We found no evidence at verification that contradicted the information submitted on the record with regard to
To determine whether respondent's sales of the subject merchandise to the United States were made at NV, we compared its United States price to NV, as described in the “United States Price” and “Normal Value” sections of this notice.
We based United States price on export price (“EP”) in accordance with section 772(a) of the Act, because the sale made to the unaffiliated purchaser was made prior to importation, and a constructed export price (“CEP”) classification was not otherwise warranted by the facts on the record. We calculated EP based on packed prices from the exporter to the first unaffiliated purchaser in the United States. We deducted domestic inland freight expenses in the home market from the starting price (gross unit price) in accordance with 772(c) of the Act. Consistent with recent determinations by the Department in other reviews and investigations involving the PRC (see Sebacic Acid From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review, 65 FR 18968, April 10, 2000; and Notice of Preliminary Determination of Sales at Less Than Fair Value: Bulk Aspirin From the People's Republic of China, 65 FR 116, January 3, 2000), we have chosen India as a surrogate country for valuing all expenses, as we have determined that India is (1) is comparable with the PRC in terms of the level of economic development, and (2) is a significant producer of comparable merchandise (see Memorandum to Edward Yang, Office Director, Re: Selection of Surrogate Country with Significant Producer of Comparable Merchandise in the New Shipper Review of Glycine from the People's Republic of China (“Surrogate Country Memorandum”), dated August 28, 2000).
We valued movement expenses as follows: to value inland truck freight, we used the average of trucking rates obtained by the Department from Indian truck companies in November 1999, as used in the Department's 1998-1999 administrative review of Sebacic Acid from the PRC (see Memorandum to the File; Re: Final Results Factors Valuation Memorandum, dated August 7, 2000). As we were unable to identify a surrogate value for inland water transportation, we valued boat and barge transportation using the surrogate value for truck freight. We adjusted the rates to reflect inflation through the POR using wholesale price indices (“WPI”) for India in International Financial Statistics, published by the International Monetary Fund (“IMF”).
For companies located in NME countries, section 773(c)(1) of Act provides that the Department shall determine NV using a factors-of-production methodology if: (1) the merchandise is exported from an NME country; and (2) available information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. In every case conducted by the Department involving the PRC, the PRC has been treated as an NME country. Pursuant to section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. Nantong has not contested such treatment in this review. Accordingly, we have applied surrogate values to the factors of production to determine NV. We calculated NV based on factors of production in accordance with section 773(c)(4) of the Act and section 351.408(c) of our regulations. Consistent with other recent determinations by the Department, we determined that India: (1) Is comparable with the PRC in terms of the level of economic development, and (2) is a significant producer of comparable merchandise (see Surrogate Country Memorandum). We valued the factors of production using publicly available information from India (see Memorandum to Edward Yang, Re: New Shipper Review of Antidumping Administrative Review of Glycine from the People's Republic of China: Factor Values and Preliminary Margin Calculations, dated August 28, 2000 (“Factors Valuation Memorandum”)). We used import prices to value many factors. As appropriate, we adjusted import prices by adding freight expenses to make them delivered prices. For a complete analysis of surrogate values, see Factors Valuation Memorandum. We valued the factors of production as follows: to value chloroacetic acid (also known as monochloroacetic acid), we used prices reported in Chemical Weekly, which publishes chemical prices in India, during the period April through August 1999. To value liquid ammonia, we used the weighted-average unit import value derived from the Monthly Trade Statistics of Foreign Trade of India—Volume II—Imports (“Indian Import Statistics”) for the period April 1996 through December 1997, adjusted for inflation through the POR. To value hexamine, we used prices reported in Chemical Weekly during the months March through August 1999, coinciding with the POR. To value methanol (also known as methyl alcohol), we used prices reported in Chemical Weekly, under the “General Market Information” section, which represents India-wide prices, during the period coinciding with the POR.
In accordance with the decision in
Nantong both purchased water and pumped water from its own wells and an adjoining canal during the POR. In its calculation of the usage factor for water, Nantong only included the water it purchased, and did not account for water it pumped itself (
To value coal, we used the weighted average unit import price for steam coal derived from Indian Import Statistics for the period April 1997 through March 1998, also used by the Department in Synthetic Indigo. We adjusted the cost of coal to include an amount for transportation. As we were unable to identify a surrogate value for inland water transportation, we valued boat and barge transportation using the surrogate value for truck freight, consistent with our practice in past proceedings (
Nantong reported using a “paper” pallet in preparing the glycine for shipment to the United States, as indicated on the commercial invoice (
To value factory overhead, selling, general and administrative expenses (“SG&A”), and profit, we calculated simple average rates based on information used by the Department in Synthetic Indigo from an Indian chemical producer, Duarala Organics Ltd. (for a further discussion of the surrogate values for overhead, SG&A and profit, see Factor Valuation Memorandum, page 7). For labor, we used the PRC regression-based wage rate at Import Administration's home page, Import Library, Expected Wages of Selected NME Countries, revised in May 2000 (
We made currency conversions in accordance with section 773A of the Act based on the rates certified by the Federal Reserve Bank.
We preliminarily determine that the following dumping margin exists:
Upon the completion of this review, we will direct Customs to assess the resulting ad valorem rates against the entered value of each entry of the subject merchandise by the importer during the POR. Furthermore, the following deposit rate will be effective upon publication of the final results of this new shipper review for all shipments of glycine from the PRC entered, or withdrawn from the warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for the reviewed firm will be the rate indicated above; (2) for previously-reviewed PRC and non-PRC exporters with separate rates, the cash deposit rate will be the company-specific rate established in the most recent period; (3) for all other PRC exporters, the rate will be the PRC-wide rate, which is 155.89 percent; and (4) for all other non-PRC exporters of subject merchandise from the PRC, the cash deposit rate will be the rate applicable to the PRC supplier of that exporter. These deposit rates, when imposed, shall remain in effect until publication of the final results of the next administrative review.
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
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of antidumping duty administrative review.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on grain-oriented electrical steel from Italy in response to a request by the respondent, Acciai Speciali Terni S.p.A. (AST). This review covers one manufacturer/exporter of the subject merchandise to the United States during the period of review (POR), August 1, 1998 through July 31, 1999.
We have preliminarily determined that sales of subject merchandise have been made below normal value (NV). If these preliminary results are adopted in our final results of administrative review, we will instruct the U.S. Customs Service to assess antidumping duties on all appropriate entries.
Interested parties are invited to comment on these preliminary results. Parties who submit comments are requested to submit with each comment a statement of the issue and a brief summary of the comment.
September 7, 2000.
Samantha Denenberg or Maureen McPhillips, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-1386 or (202) 482-0196, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act) are to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department's regulations are to 19 CFR part 351 (1999).
The Department published in the
On January 5, 2000, the petitioner submitted a timely allegation, pursuant to section 773(b) of the Act, that AST had made sales in the home market at less than the cost of production (COP). Our analysis of the allegation indicated that there were reasonable grounds to believe or suspect that AST sold grain-oriented electrical steel in the home market at prices that were less than the COP. Accordingly, we initiated a COP investigation with respect to AST.
Under section 751(a)(3)(A) of the Act, the Department may extend the deadline for the preliminary results of an administrative review if it determines that it is not practicable to complete the review within the statutory time limit of 245 days. On March 17, 2000, the Department published a notice of extension of the time limit for the preliminary results of review to August 30, 2000 (65 FR 14535).
The Department sent its initial questionnaire to the respondent on October 8, 1999. AST responded to section A on November 11, 1999 and sections B and C on November 24, 1999. AST responded to our February 4, 2000 supplemental section A questionnaire on February 10, 2000. We released our supplemental questions for sections B and C on February 22, 2000, and received AST's response on March 22, 2000. On May 3, 2000, we issued a second supplemental questionnaire on sections A, B, and C. We received AST's response on May 17, 2000. On May 26, 2000, the Department requested additional information on AST's “temporary in bond” (TIB) U.S. transactions. AST responded to this request on June 1, 2000.
The petitioners, Allegheny Ludlum Corp., AK Steel, the Butler Armco Independent Union, the United Steelworkers of America, and the Zanesville Armco Independent Union, responded to AST's response to sections A through C on December 7, 1999. On March 3 and April 6, 2000, the petitioners submitted comments on AST's supplemental responses to sections A and C. In addition, the petitioners addressed the issues in this case in subsequent submissions on April 26, May 25, and July 14, 2000.
The Department is conducting this review in accordance with section 751(a) of the Act.
The product covered by this review is grain-oriented silicon electrical steel, which is a flat-rolled alloy steel product containing by weight at least 0.6 percent of silicon, not more than 0.08 percent of carbon, not more than 1.0 percent of aluminum, and no other element in an amount that would give the steel the characteristics of another alloy steel, of a thickness of no more than 0.560 millimeters, in coils of any width, or in straight lengths which are of a width measuring at least 10 times the thickness, as currently classifiable in the Harmonized Tariff Schedule of the United States (HTS) under item numbers 7225.30.7000, 7225.40.7000, 7225.50.8085, 7225.99.0090, 7226.11.1000, 7226.11.9030, 7226.11.9060, 7226.91.7000, 7226.91.8000, 7226.92.5000, 7226.92.7050, 7226.92.8050, 7226.99.0000, 7228.30.8050, and 7229.90.1000. Although the HTS subheadings are provided for convenience and customs purposes, our written descriptions of the scope of these proceedings are dispositive.
As provided in section 782(i) of the Act, we verified AST's sales information from June 5, 2000 through June 9, 2000,
The Department considers the date of sale to be the date on which all substantive terms of sale are agreed upon by the parties. This normally includes the price, quantity, delivery terms and payment terms. In accordance with 19 CFR 351.401(i), the date of sale will normally be the date of the invoice, as recorded in the exporter's or producer's records kept in the ordinary course of business, unless satisfactory evidence is presented that the exporter or producer establishes the material terms of sale on some other date. In some instances, it may not be appropriate to rely on the date of invoice as the date of sale because the evidence may indicate that the material terms of sale were established on some date other than the invoice date.
For these preliminary results, we have determined that the record evidence indicates that the invoice date is the date on which AST established the material terms of sale in the home market. In the U.S. market, the shipment date is the date in which the terms of sale are set because the shipment date precedes the invoice date. While AST stated in its November 2, 1999 response that for both the U.S. market and the home market, the terms of sale, such as price and quantity, are established at the time of order confirmation and rarely change from the order confirmation date to the date of invoice, we have found evidence that the terms of sale are not always set at the time of order confirmation. The sales traces reviewed at verification did not provide evidence that the material terms of sale are always set at the time of order confirmation.
AST contends that it is affiliated with Electroterni, but denies any affiliation with Nuova Eletrofer (“NE”). Under section 771(33)(E) of the Act, the Department will determine that companies are affiliated where a company directly or indirectly owns, controls, or holds power to vote, five percent or more of the outstanding voting stock or shares of any organization. Regarding ownership, AST owns 24% of Electroterni and NE owns the remaining shares. AST does not directly own shares in NE, but rather, NE is wholly owned by another party.
There is considerable cross-representation between NE and Electroterni. The owner of NE serves on the board of Eletroterni. Additionally, NE and Electroterni jointly own another company which also purchases subject material from Electroterni. This joint company's board of directors includes the owner of NE and the managing director of Electroterni. Moreover, NE and Electroterni's internal operations seem to be inextricably linked. The owner of NE is responsible for establishing the internal price lists for both NE and Electroterni.
AST considers NE and Electroterni to be a “group” of companies. AST makes most of its business decisions with regard to this “group,” rather than with NE and Electroterni individually. For example, AST negotiates a common framework sales agreement and a common rebate agreement jointly with Electroterni and NE. Both Electroterni and NE have a longstanding relationship with AST, and AST serves as the major supplier of both companies. It is the Department's contention that by virtue of the linked operations of NE and Electroterni, as well as AST's own treatment of NE and Electroterni as a group for sales and rebate purposes, it is inappropriate for AST to consider itself only affiliated with one party and not the other. Consequently, for purposes of this preliminary determination, we have decided to treat AST as affiliated with both Electroterni and NE, based on the totality of the circumstances.
We requested AST to report Electroterni's and NE's sales to the first unaffiliated customer during the POR. Although AST contended that it did not have the power to oblige NE to report its downstream sales, both Electroterni and NE complied with our request in a timely manner and reported their home market sales to the first unaffiliated customer. Additionally, both NE and Electroterni made staff available to answer the Department's questions during the sales verification.
Petitioners maintain that of those sales AST made to its affiliates, AST should identify which sales were subsequently resold by the affiliates, and which sales were further processed by the affiliates into non-subject merchandise, in order to avoid “double-counting” of sales in the margin calculation.
At verification, we confirmed that the records AST keeps in the normal course of business do not indicate whether sales to Electroterni and/or NE would result in resales or be consumed in the manufacture of non-subject merchandise. We also noted that neither of the affiliates maintained computer systems that allow them to link their inventory back to the AST invoices.
Rather than “double-counting” the downstream sales by using AST's sales to Electroterni and NE, we have excluded from our analysis the sales made by AST to these two companies and used Electroterni's and NE's sales to the first unaffiliated customer in our analysis.
In accordance with section 773(a)(1)(B)(i) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (LOT) as the EP or CEP. The NV LOT is that of the starting price of sales in the comparison market or, when NV is based on CV, that of the sales from which we derive selling, general and administrative expenses (SG&A) and profit. For EP, the LOT is also the level of the starting price sale, which is usually from the exporter to the importer. For CEP, it is the level of the constructed sale from the exporter to the importer.
To determine whether NV sales are at a different LOT than EP or CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and
In this administrative review, AST requested a LOT adjustment for its home market sales, maintaining that a different level of trade exists between AST sales to the United States and the affiliated reseller's sales in the home market. AST maintains that it has two channels of distribution in the Italian market for sales by AST (direct factory and warehouse sales) and one channel of distribution in the U.S. market (direct factory). To determine if a LOT adjustment was necessary, in accordance with the principles discussed above, we examined information regarding the distribution systems in both the United States and Italian markets, including the selling functions, classes of customer, and selling expenses. We, therefore, compared the difference in the selling functions performed by AST and its affiliated entities, Electroterni and NE, in the home market, and compared them to those performed by AST and AST USA in the U.S. market.
For AST's direct factory sales in the home market, customers place their orders in advance of delivery; AST then plans its production schedule to allow delivery according to the customer's requirements. After production, the product is immediately shipped to the customer. AST also makes home market sales of the foreign like product from inventory. In contrast with direct sales, AST, rather than the customer, typically initiates these sales by alerting potential customers of the immediate availability of specific products.
In its March 22, 2000 supplemental questionnaire response, AST stated that it coded all of its reported home market sales as the same LOT because its invoicing system could not distinguish between direct factory and inventory sales. On May 17, 2000, in its supplemental response to sections A-C, AST stated that virtually all GOES is sold to one class of customers (i.e., transformer manufacturers), indicating that there is a single LOT in the home market. Subsequently, in a revised home market sales listing, AST added a code to designate sales of GOES by service centers/end-users (
In determining whether separate LOTs actually existed in the home market, we examined whether AST's home market sales involved different selling functions along the chain of distribution between AST and its unaffiliated customers. AST maintained that it provided technical advice, freight and delivery services, warranty services, and credit terms on a moderate level for both direct factory sales and warehouse sales. There was no inventorying associated with direct factory sales, while there was a moderate degree of inventory expense for warehouse sales. For its sales from the warehouse, AST provided technical advice, freight and delivery, warranty, and credit terms.
AST's affiliates NE and Electroterni follow a similar sales process to that of AST. NE and Electroterni's customers initiate requests for merchandise, and these companies sell mainly from inventory. NE and Electroterni may at times service the same customers as AST. However, most of the customers are smaller end-users than those serviced by AST. NE and Electroterni offer similar selling functions with regard to sales of GOES material. For a complete description of the selling functions offered by AST, NE, and Electroterni, see the LOT section of the verification report, “Sales Verification of Sections A-C Questionnaire Responses Submitted by Acciai Speciali Terni S.p.A. and Acciai Speciali Terni USA, Inc.,” (August 30, 2000).
Based on the evidence on the record, we have determined that one level of trade exists in the home market. As late as May 17, 2000, in its supplementary response to sections A-C, AST stated that virtually all GOES was sold to one class of customers (
We also examined information regarding the distribution system in the United States, including the selling functions, classes of customer, and selling expenses, and noted no evidence that more than one level of trade exists in the U.S. market. AST stated that its U.S. sales of the merchandise under review were all direct factory sales. For U.S. direct factory sales, the U.S. customer places an order with AST USA, which in turn places the order with AST. These sales are produced to order and shipped directly to the customer. For sales in the U.S. market, AST stated that it provided AST USA with freight and delivery services and some aid in extending credit. AST characterizes its level of involvement in these selling activities as low level. AST states that it provides no assistance to AST USA in the areas of technical advice, inventory carrying costs, and warranty services. For direct factory sales between AST USA and the first unrelated customer, AST USA provides technical advice, freight and delivery service, and credit terms on a moderate level. Services for inventory carrying and warranty are not offered.
While AST claims differences in selling functions in connection with each channel of distribution in both the home market and U.S. market, we find that the actual differences in selling functions between channels are relatively minor (
Given the evidence on the record, we conclude that AST did not adequately support its claim that there are two levels of trade in the home market and that it should be granted a CEP offset because its CEP sales are at a less remote LOT than AST's home market sales. Therefore, we preliminarily determine that only one LOT exists in the home market, only one level of trade exists in the U.S. market, that there is not a substantial difference in the levels of trade between the U.S. market and the home market, and that a CEP offset is not warranted.
AST and its U.S. affiliate, AST USA, sold subject merchandise to U.S. customers during the POR which AST stated was entered into the U.S.
There is insufficient record evidence supporting AST's claim that those “TIB” entries should not be included in the antidumping calculations because AST has not provided transaction-specific information covering these sales. Accordingly, for these preliminary results, the Department has included those “in bond” transactions billed to a U.S. customer in the calculation of the preliminary dumping margin. However, the Department invites all interested parties to this proceeding to comment on the transactions in question.
In accordance with section 771(16) of the Act, all products produced by the respondents covered by the description in the
To determine whether sales of subject merchandise to the United States were made at less than NV, we compared the CEP to NV, as described in the “Constructed Export Price” and “Normal Value” sections of this notice. In accordance with section 777A(d)(2) of the Act, we calculated monthly weighted-average home market prices for NV and compared these to individual U.S. transaction prices.
In its initial submission, AST reported its U.S. sales as EP sales. For sales in the United States, section 772(a) of the Act states that EP is the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside the United States to an unaffiliated purchaser in the United States. Section 772(b) of the Act states that CEP is 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.
Although AST originally reported its U.S. sales as EP sales, it reclassified its U.S. sales as CEP sales, citing the recent decision of the United States Court of Appeals for the Federal Circuit (CAFC) in
The Department agrees with AST's reclassification of these sales as CEP sales because the subject merchandise was first sold to an unaffiliated purchaser by AST's affiliate, AST USA. The U.S. customer places an order with AST USA who in turn places the order with AST. AST USA typically places an order months in advance of delivery, allowing AST to plan its production schedule so that delivery can be made directly from the factory to the U.S. customer. Although the subject merchandise is sent directly from the factory to the unaffiliated customer, it is AST USA that invoices the unaffiliated U.S. customer and receives payment. Therefore, upon its analysis, the Department has treated AST's U.S. sales as CEP sales, as defined in section 772(b) of the Act.
The Department calculated CEP for AST based on a packed CIF-delivered, duty paid basis. In accordance with section 772(c) of the Act, we reduced CEP by movement expenses (international freight, inland freight, U.S. brokerage fees, and duties). We deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (credit costs), and indirect selling expenses in accordance with section 772(d)(1) of the Act. We changed the denominator of AST's reported home market indirect selling expenses in order to reflect more accurately the foreign indirect selling expenses incurred. Other minor changes were made to other adjustments as a result of the verification.
Pursuant to section 773(b)(1) of the Act, we initiated a COP investigation of sales made by AST in the home market.
In accordance with section 773(b)(3) of the Act, we calculated the weighted-average COP, by control number, based on the sum of the cost of materials and fabrication, G&A expenses, and packing costs. We relied on the submitted COP data except in the following instances (see COP and CV Calculation Memorandum from Garri Gzirian and Taija Slaughter to Neal Halper, August 30, 2000):
1. We found a clerical error in the Company's calculations of the adjustments intended to correct the understatement of total standard material and processing costs resulting from non-slit and thickness adjustments. Specifically, AST should have treated certain items in its calculations as negative and not positive values. We corrected this error for the purposes of preliminary determination.
2. We found that AST did not include in the reported costs the cost of outside processing, which under the Company's cost accounting system is accounted for as a variance. Likewise, AST did not include the “Other Variance” amount, which captures all remaining differences between actual and standard costs. For the purposes of preliminary determination, we included the cost of outside processing and the “Other Variance” amount in the reported costs.
3. AST adjusted its standard processing cost for cost center-specific variances. These cost centers are used to process more then just grain-oriented electrical steel products.
However, the Company weight-averaged these variances without regard to the percentage each cost center contributed to production of the merchandise under consideration.
4. AST adjusted its standard material cost by a weighted-average raw material variance. The specific raw materials generating the variances (
5. AST included in calculations of the interest expense factor certain income and expense items that are either not interest related, or do not qualify for a short-term interest income offset. For the purposes of preliminary determination, we adjusted the Company's interest expense factor calculations for those items.
We compared the adjusted weighted-average COP to the comparison-market sales prices of the foreign like product, as required under section 773(b) of the Act. In determining whether to disregard home market sales made at prices less than the COP, we examined whether such sales were made in substantial quantities over an extended period of time, and at prices which permitted the recovery of all costs within a reasonable period of time. On a connum-specific basis, we compared the revised COP to the home market prices, less any applicable movement charges, discounts, rebates and direct and indirect selling expenses.
Pursuant to section 773(b)(2)(C), where less than 20 percent of the respondent's sales of a given product were made at prices below the COP, we did not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in “substantial quantities.” Where twenty percent or more of the respondent's home market sales of a given product were made at prices below the COP, we disregarded the below-cost sales because such sales were found to be made within an extended period of time in “substantial quantities,” in accordance with sections 773(b)(2)(B) and (C) of the Act, and because the below-cost sales of the product were at prices which would not permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.
Based on this test, we excluded from our analysis certain comparison-market sales of AST's grain-oriented electrical steel that were made at below-COP prices within the POR. (
In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating normal value (
We calculated NV based on packed, delivered prices in the home market. Since AST reported its sales net of any discounts, we made adjustments to the starting price for rebates, where appropriate. We also made deductions, where appropriate, for inland freight, warehousing, and inland insurance pursuant to section 773(a)(6)(B) of the Act. For all comparisons, we made circumstance-of-sale adjustments, where appropriate, for differences in credit expenses, warranty, technical service expenses, and royalties, pursuant to section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410(c).
We changed the denominator of AST's reported home market indirect selling expenses in order to reflect more accurately the expenses incurred. Other minor changes were made to other adjustments as a result of the verification.
We preliminarily determine that the following dumping margin exists for the period August 1, 1998 through July 31, 1999:
The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by this review.
The Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate
Furthermore, the following deposit requirements will be effective upon publication of the final results of this antidumping duty review for all shipments of grain-oriented electrical steel, from Italy, entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a) of the Act: (1) The cash deposit rate for AST will be the rate established in the final results; (2) if the exporter is not a firm covered in this review, a prior review, or the original less-than-fair-value (LTFV) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (3) the cash deposit rate for all other manufacturers or exporters will continue to be 60.79 percent, the “all others” rate made effective by the LTFV investigation. These requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review. The Department will issue appraisement instructions directly to the Customs Service.
This notice also serves as a preliminary reminder to importers of their responsibility under section 19 CFR 351.402(f)(2) of the Department's regulations 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 in accordance with section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)).
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of antidumping duty administrative review.
In response to requests from interested parties, the Department of Commerce is conducting an administrative review of the antidumping duty order on gray portland cement and clinker from Mexico. The review covers exports of subject merchandise to the United States during the period August 1, 1998, through July 31, 1999, and one firm, CEMEX, S.A. de C.V., and its affiliate, Cementos de Chihuahua, S.A. de C.V. We have preliminarily determined that, during the period of review, sales were made below normal value.
We invite interested parties to comment on these preliminary results. Parties who submit arguments in this proceeding are requested to submit with the argument (1) a statement of the issues, and (2) a brief summary of the argument.
September 7, 2000.
David Dirstine or Robin Gray, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-4033, (202) 482-4023, respectively.
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations are to 19 CFR Part 351 (April 1999).
On August 11, 1999, the Department published in the
We also received information sufficient to warrant initiation of a changed-circumstances administrative review of the antidumping duty order on gray portland cement and clinker from Mexico. Based on the information on the record, we preliminarily determined that GCC Cemento, S.A. de C.V. (GCCC), is the successor-in-interest to CDC for purposes of determining antidumping liability. See
The products covered by this review include gray portland cement and clinker. Gray portland cement is a hydraulic cement and the primary component of concrete. Clinker, an intermediate material product produced when manufacturing cement, has no use other than of being ground into finished cement. Gray portland cement is currently classifiable under Harmonized Tariff Schedule (HTS) item number 2523.29 and cement clinker is currently classifiable under HTS item number 2523.10. Gray portland cement has also
As provided in section 782(i) of the Act, we verified sales information provided by CEMEX and CDC using standard verification procedures, including an examination of relevant sales and financial records, and selection of original documentation containing relevant information. Our verification results are outlined in public versions of the verification reports.
Section 771(33) of the Act defines when two or more parties will be considered affiliated for purposes of an antidumping analysis. Moreover, 19 CFR 351.401(f) describes when we will treat two or more affiliated producers as a single entity (
The regulations state that we will treat two or more affiliated producers as a single entity where those producers have production facilities for similar or identical products that would not require substantial retooling of either facility in order to restructure manufacturing priorities and we conclude that there is a significant potential for the manipulation of price or production. In identifying a significant potential for the manipulation of price or production, the factors we may consider include the following: (i) the level of common ownership; (ii) the extent to which managerial employees or board members of one firm sit on the board of directors of an affiliated firm; (iii) whether operations are intertwined, such as through the sharing of sales information, involvement in production and pricing decisions, the sharing of facilities or employees, or significant transactions between the affiliated producers.
A North American Free Trade Agreement Binational Panel upheld our decision in the 1994/95 administrative review to collapse CEMEX and CDC. See Opinion of the Panel,
Having reviewed the current record, we find, once again, that the factual information underlying our original decision to collapse these two entities has not changed during the 1998/99 review period. CEMEX's indirect ownership of CDC exceeds five percent, such that these two companies are affiliated pursuant to section 771(33)(E) of the Act. In addition to their affiliation, we find that CEMEX and CDC have similar production processes. Finally, interlocking boards of directors and significant transactions between the companies give rise to a significant potential for the manipulation of price or production. Accordingly, we preliminarily conclude that these affiliated producers should be treated as a single entity and that we should calculate a single, weighted-average margin for these companies. Therefore, throughout this notice, references to “respondent” should be read to mean the collapsed entity. See Memorandum from Analyst to Joseph A. Spetrini,
We used export price (EP), in accordance with section 772(a) of the Act, where the subject merchandise was sold to the first unaffiliated purchaser in the United States prior to importation. We used constructed export price (CEP) in accordance with section 772(b) of the Act for those sales to the first unaffiliated purchaser that took place after importation into the United States. CEMEX made CEP sales during the period of review, while CDC made both CEP and EP sales during the period of review.
We calculated EP based on delivered prices to unaffiliated customers in the United States. Where appropriate, we made adjustments from the starting price for early-payment discounts, foreign inland freight, U.S. inland freight, U.S. brokerage and handling, and U.S. duties. We also adjusted the starting price for billing adjustments to the invoice price.
We calculated CEP based on delivered prices to unaffiliated customers. Where appropriate, we made adjustments to the starting price for discounts and billing adjustments to the invoice price. In accordance with section 772(d) of the Act, we deducted those selling expenses, including inventory carrying costs, that were related to economic activity in the United States. We also made deductions for foreign brokerage and handling, foreign inland freight, U.S. inland freight and insurance, U.S. brokerage and handling, and U.S. duties. Finally, we made an adjustment for CEP profit in accordance with section 772(d)(3) of the Act.
With respect to subject merchandise to which value was added in the United States prior to sale to unaffiliated U.S. customers (
Section 772(e) of the Act provides that, where the subject merchandise is imported by an affiliated person and the value added in the United States by the affiliated person is likely to exceed substantially the value of the subject merchandise, we shall determine the CEP for such merchandise using the price of identical or other subject merchandise if there is a sufficient quantity of sales to provide a reasonable basis for comparison and we determine that the use of such sales is appropriate. Section 351.402(c)(2) of the regulations provides that normally we will determine that the value added in the United States by the affiliated person is likely to exceed substantially the value of the subject merchandise if we estimate the value added to be at least 65 percent of the price charged to the first unaffiliated purchaser for the merchandise as sold in the United States. Normally we will estimate the value added based on the difference between the price charged to the first unaffiliated purchaser for the merchandise as sold in the United States and the price paid for the subject merchandise by the affiliated person. We will base this determination normally on averages of the prices and the value added to the subject merchandise. If there is not a sufficient quantity of such sales or if we determine that using the price of identical or other subject merchandise is not appropriate, we may use any other reasonable basis to determine the CEP.
During the course of this administrative review, the respondent submitted, and we verified, information which allowed us to determine whether, in accordance with section 772(e) of the Act, the value added in the United States by its U.S. affiliates is likely to exceed substantially the value of the subject merchandise. To determine whether the value added is likely to exceed substantially the value of the subject merchandise, we estimated the value added based on the difference between the averages of the prices charged to the first unaffiliated purchaser for the merchandise as sold in the United States and the averages of the prices paid for subject merchandise by the affiliated person. Based on this analysis, we estimate that the value added was at least 65 percent of the price the respondent charged to the first unaffiliated purchaser for the merchandise as sold in the United States. Therefore, we preliminarily determine that the value added is likely to exceed substantially the value of the subject merchandise. Also, the record indicates that there is a sufficient quantity of subject merchandise to provide a reasonable and appropriate basis for comparison. Accordingly, for purposes of determining dumping margins for the further-manufactured sales, we have assigned the weighted-average margin of 41.28 percent, the rate calculated for sales of identical or other subject merchandise sold to unaffiliated purchasers.
No other adjustments to EP or CEP were claimed or allowed.
In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating normal value (NV), we compared the respondent'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)(C) of the Act. Since the respondent'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. Therefore, we have based NV on home-market sales.
During the period of review, the respondent sold the following types of cement in the United States—Type V, Type V LA, Type II, and Type II LA. The statute expresses a preference for matching U.S. sales to identical merchandise in the home market. The respondent sold Type I, Type II LA, Type V, and Type V LA in the home market. In situations where identical product types cannot be matched, the statute expresses a preference for basing NV on sales of similar merchandise (sections 773(a)(1)(B) and 771(16) of the Act). Because we have preliminarily determined that sales of Type V and Type V LA by the respondent in the home market are outside the ordinary course of trade (see the “Ordinary Course of Trade” section in the decision memorandum from Laurie Parkhill, Office Director, to Richard W. Moreland, Deputy Assistant Secretary, Import Administration) and that there were no sales to unaffiliated customers of Type II LA in the home market, we did not find identical matches in the home market to which we could match sales of the subject merchandise. Accordingly, we based NV on sales of similar merchandise.
During the period of review, the respondent sold two other basic types of gray portland cement in Mexico—Type I and pozzolanic. The history of this order demonstrates that, of the various types of cement which may reasonably be compared to imports of cement from Mexico, Type I cement is most similar to the types of cement sold in the United States.
On June 18, 1999, the North American Free Trade Agreement Binational Panel reviewing the final results of the 1994/95 administrative review found that the respondent's Type I bagged cement should not have been compared with sales of Type I cement sold in bulk to the United States in the calculation of normal value and remanded the results of the 1994/95 review to the Department for a recalculation of the margin. This proceeding has not yet been completed. In this review, the record supports our continued practice of finding the respondent's sales of Type I bagged cement in the home market as sales that are comparable, within the meaning of section 771(16)(B) of the Act, to U.S. sales. Specifically, in accordance with section 771(16)(B) of the Act, we find that both bulk and bagged Type I cement are produced in the same country and by the same producer as the types sold in the United States, both bulk and bagged Type I cement are like the types sold in the United States in component materials and in the purposes for which used, and both bulk and bagged Type I cement are approximately equal in commercial value to the types sold in the United States. The questionnaire responses submitted by the respondent indicate that, with the exception of packaging, Type I cement sold in bulk and Type I cement sold in bags are physically identical and both are used in the production of concrete. Also, since there is no difference in the cost of production between cement sold in bulk or in bagged form (again with the exception of packaging), both are approximately equal in commercial value. See CEMEX response to Section A of the Department's Questionnaire, Volume 1, December 6, 1999, at A-34-36, Section B, December 23, 1999, at B-47-48, and CDC response to Section A, at A-44-47, December 6, 1999, and Section B, December 21, 1999, at B-30.
Section 773(a)(1)(B) of the Act requires the Department to base NV on “the price at which the foreign like product is first sold (or in the absence of sales, offered for sale) for consumption in the exporting country, in the usual commercial quantities and in the ordinary course of trade.” Ordinary course of trade is defined as “the conditions and practices which, for a reasonable time prior to the exportation of the subject merchandise, have been normal in the trade under consideration with respect to merchandise of the same class or kind.” See section 771(15) of the Act.
In the instant review, we analyzed home-market sales of cement produced as Type V LA and Type V cement. Pursuant to section 773(a)(1)(B) of the Act, we based our examination on the totality of circumstances surrounding the respondent's sales in Mexico that are produced as Type V LA cement and Type V using the following criteria: number of transactions, the quantity of tonnage sold, shipping distances, and profit. Based on our analysis of the above-mentioned information on the record, we found that the respondent's home-market sales of Type V LA cement and Type V cement made during the instant review period are outside the ordinary course of trade. For a detailed discussion, see the “Ordinary Course of Trade” section in the decision memorandum from Laurie Parkhill, Office Director, to Richard W. Moreland, Deputy Assistant Secretary, Import Administration (August 30, 2000).
To test whether sales to affiliated customers were made at arm's length, where we could test the prices, we compared the prices of sales to affiliated and unaffiliated customers, net of all movement charges, direct selling expenses, discounts, and packing. Where the price to the affiliated party was on average 99.5 percent or more of the price to the unaffiliated parties, we
The petitioner alleged on January 5, 2000, that the respondent sold gray portland cement and clinker in the home market at prices below the cost of production (COP). After examining the allegation, we determined that there were reasonable grounds to believe or suspect that the respondent had sold the subject merchandise in the home market at prices below the COP. Therefore, pursuant to section 773(b)(1) of the Act, we initiated a COP investigation in order to determine whether the respondent made home-market sales during the period of review at below-cost prices. See Memorandum from Robin Gray to Laurie Parkhill,
Where appropriate, we adjusted home-market sales of Type I cement for discounts, rebates, packing, handling, interest revenue, and billing adjustments to the invoice price. In addition, we adjusted the starting price for inland freight, inland insurance, and pre-sale warehousing expenses. For comparisons to EP transactions, we made adjustments to the home-market starting price for differences in direct selling expenses in the two markets. For comparisons to CEP sales, we deducted home-market direct selling expenses from the home-market price. We also deducted home-market indirect selling expenses as a CEP-offset adjustment (see
Section 773(a)(6)(C)(ii) of the Act directs us to make an adjustment to NV to account for differences in the physical characteristics of merchandise where similar products are compared. Section 351.411(b) of the regulations directs us to consider differences in variable costs associated with the physical differences in the merchandise.
A discussion of our preliminary conclusions on differences in merchandise is contained in a memorandum in the official file for this case. See the “Difference in Merchandise” section of the Decision Memorandum from Laurie Parkhill, Office Director, to Richard W. Moreland, Deputy Assistant Secretary,
In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the home market at the same level of trade as the EP or CEP. The NV level of trade is that of the starting-price sales in the home market or, when NV is based on constructed value (CV), that of sales from which we derive selling, general and administrative (SG&A) expenses and profit. For EP, the U.S. level of trade is also the level of the starting-price sale, which is usually from the exporter to the importer. For CEP, it is the level of the constructed sale from the exporter to the importer.
To determine whether NV sales are at a different level of trade than EP or CEP, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison-market sales are at a different level of trade and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the level of trade of the export transaction, we make a level-of-trade adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the difference in the levels between NV and CEP affects price comparability, we adjust NV under section 773(a)(7)(B) of the Act (the CEP offset provision).
Based on our analysis, we conclude that the respondent's home-market sales to various classes of customers which purchase both bulk and bagged cement constitute one level of trade. We based our conclusion on our analysis of the respondent's reported selling functions and sales channels. We found that, with some minor exceptions, CEMEX and CDC performed the same selling functions to varying degrees in similar channels of distribution. We also concluded that the variations in selling functions were not substantial when all selling expenses were considered as a whole. See the memorandum on level of trade from analyst to Laurie Parkhill, Office Director (August 21, 2000).
With respect to U.S. sales, we conclude that the respondent's sales to various classes of customers which purchase both bulk and bagged cement constituted three separate levels of trade. We based our conclusion on our analysis of the respondent's reported selling functions and sales channels after making deductions for selling expenses under section 772(d) of the Act. CEMEX and CDC performed different sales functions for sales to their respective U.S. affiliates and CDC performed different sales functions for EP sales. Furthermore, the respondent's home-market sales occur at a different and more advanced stage of distribution than its sales to the United States. We have also determined that the data available do not permit us to calculate a level-of-trade adjustment and, therefore, we could not make a level-of-trade adjustment to normal value in our analysis of the respondent's EP sales. However, we have granted a CEP-offset adjustment in accordance with section 773(a)(7)(B) of the Act for the respondent's CEP sales. See the analysis memorandum on level of trade referenced above.
Pursuant to section 773A(a) of the Act, we made currency conversions into U.S. dollars based on the exchange rates in effect on the dates of U.S. sales as certified by the Federal Reserve Bank.
As a result of our review, we preliminarily determine the dumping margin for the collapsed parties, CEMEX and CDC, for the period August 1, 1998, through July 31, 1999, to be 41.28 percent.
We will disclose calculations performed in connection with these preliminary results to parties within five days of the date of publication of this notice. Interested parties may request a hearing within 30 days of publication of this notice. We will notify interested parties of the date of any requested hearing and the briefing schedule.
Upon completion of this review, we will determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. The Department will issue appropriate appraisement instructions directly to the Customs Service upon completion of this review. The final results of this review shall be the basis for the assessment of
Furthermore, the following 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 review, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate for the respondent will be the rate determined in the final results of review; (2) for previously reviewed or investigated companies not mentioned above, the cash-deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or in the original less-than-fair-value (LTFV) investigation, but the manufacturer is, the cash-deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash-deposit rate for all other manufacturers or exporters will be 61.35 percent, the all-others rate from the LTFV investigation. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a 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 dumping duties.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Preliminary Results of Antidumping Duty Administrative Review and Partial Recission of Review
September 7, 2000.
Martin Odenyo or Robert M. James, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW. Washington, DC 20230; telephone: (202) 482-5254, or (202) 482-0649, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Tariff Act) are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations are to 19 CFR part 351 (April 1, 2000).
On August 11, 1999, the Department published in the
On August 13, 1999, in accordance with 19 CFR 351.213(b), counsel for three PRC companies requested that we conduct an administrative review. These three companies are Shanghai Gift and Travel Products Import and Export Corporation (Shanghai), Liaoning Native Product Import and Export Corporation (Liaoning), and Tianjin Native Produce Import and Export Group Corporation, Ltd. (Tianjin). On August 31, 1999, the National Candle Association (petitioner) requested that we conduct an administrative review of twenty-two specific producers/exporters: CNACC (Zhejiang Imports & Export Co., Ltd., Shanghai Ornate Candle Art Co., Ltd., China Overseas Trading Dalian Corp., Jilin Province Arts and Crafts, China Hebei Boye Great Nation Candle Co., Ltd., Taizhou Sungod Gifts Co., Ltd., Zhejiang Native Produce & Animal By-Products, Import & Export Corp., Cnart China Gifts Import & Export Corp., Liaoning Light Industrial Products Import & Export Corp., Jintan Foreign Trade Corp., Jiangsu Yixing Foreign Trade Corp., Tonglu Tiandi, Zhongnam Candle, China Packaging Import & Export Liaoning Co., Kwung's International Trade Co., Ltd., Shanghai Gift & Travel Products Imp. & Exp. Corp., Liaoning Native Product Import & Export Corporation, Tianjin Native Produce Imp. & Exp. Group Corp. Ltd., Candle World Industrial Co., Fu Kit, Shanghai Zhen Hua, and Universal Candle Company, Ltd. We published a notice of initiation of this antidumping duty administrative review for these companies (respondents) on October 1, 1999, at 64 FR 53318.
On October 15, 1999, we issued questionnaires to the each of the twenty-two respondents. In response to our request for information, Jilin Province Arts and Crafts (Jilin) reported that it had no sales or shipments during the POR. Our review of Customs import data indicated that there were no entries by Jilin during the POR.
Only five respondents responded to section A of the antidumping questionnaire. Liaoning, Tianjin, and Shanghai submitted responses to section A on November 29, 1999, Universal Candle Company, Ltd. (Universal) submitted its response on December 20, 1999, and Rich Talent Trading, Ltd. (Rich Talent) submitted its response on December 21, 1999. Liaoning, Tianjin, and Universal responded to sections C and D of the questionnaire in March 2000. Tianjin submitted a corrected version of these documents on April 24, 2000. Rich Talent did not submit a response to sections C and D of the questionnaire, nor has the company responded to any further requests for information by the Department. On February 28, 2000, Shanghai formally notified the Department that it would no longer participate in this review. Accordingly, the Department considers Rich Talent, Shanghai, and the remaining sixteen named companies that failed to respond to our antidumping questionnaires to be uncooperative respondents, as discussed further below.
The Department issued supplemental section A questionnaires to Rich Talent, Liaoning, Tianjin, and Universal on March 21, 2000. We received responses from Liaoning, Tianjin, and Universal in April, 2000. The Department issued supplemental sections C and D questionnaires and a second supplemental section A questionnaire to the respondents in May, 2000. Liaoning, Tianjin and Universal submitted responses to these supplemental questionnaires in June, 2000. As discussed above, Rich Talent did not respond to any of the Department's supplemental questionnaires.
On April 18, 2000, the Department published in the
On March 21, 2000, the Department invited interested parties to provide publicly available information (PAI) for valuing the factors of production and for surrogate country selection. We received a joint response from Liaoning and Tianjin on April 24, 2000. Petitioner submitted a rebuttal to the respondents' submission on May 8, 2000. On June 16, 2000, we selected India as the surrogate country for the PRC in this review.
The products covered by this order are certain scented or unscented petroleum wax candles made from petroleum wax and having fiber or paper-cored wicks. They are sold in the following shapes: tapers, spirals, and straight-sided dinner candles; rounds, columns, pillars, votives; and various wax-filled containers. The products were classified under the Tariff Schedules of the United States (TSUS) item 755.25, Candles and Tapers. The products are currently classified under the Harmonized Tariff Schedule (HTS) item 3406.00.00. Although the HTS subheading is provided for convenience and customs purposes, our written description of the scope of this proceeding remains dispositive.
The Department preliminarily determines that the twenty-one respondents in this review should be assigned a dumping margin based upon the facts otherwise available.
Section 776(a)(2) of the Act provides that “if an interested party or any other person (A) withholds information that has been requested by the administering authority; (B) fails to provide such information by the deadlines for the submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 782; (C) significantly impedes a proceeding under this title; or (D) provides such information but the information cannot be verified as provided in section 782(i), the administering authority shall, subject to section 782(d), use the facts otherwise available in reaching the applicable determination under this title.” The Department has determined that the use of facts available is appropriate for the eighteen respondents that failed wholly to respond to our questionnaires since they withheld information necessary to complete this review and did not act to the best of their ability.
We determine that the questionnaire responses submitted by Liaoning, Tianjin, and Universal are deficient and contain unreliable and unverifiable data which cannot be used as the basis of a calculated dumping margin. These three respondents did not respond adequately to the original and supplemental questionnaires which instructed the respondents to explain and provide sample calculations of the methodologies used to construct the response to section D of the questionnaire. Where such information was submitted, it was often either incomplete or contradictory to the point that serious concerns remain regarding the basic reliability of the data.
Throughout the majority of this administrative review leading up to our preliminary results, Universal insisted that all of its POR shipments were not subject to the antidumping order, and stated that all in-scope candles were produced and shipped from Hong Kong, as opposed to mainland China. During the period that Universal maintained this position, the company did not submit any sales data pertaining to sales of subject merchandise from mainland China. Furthermore, although the Department requested information relating to Universal's worldwide legal and operational affiliations, Universal's initial responses were minimal. Finally, after the Department repeatedly requested such information, Universal began submitting basic information pertaining to affiliations and sales of what it referred to as “potentially subject merchandise.” Universal's supplemental responses included numerous new and often contradictory sales data and information on affiliations which did not reconcile with previous submissions (
With respect to reported costs of production, Universal initially stated that it keeps production records for its facilities in mainland China. However, contrary to the company's earlier statements, Universal subsequently claimed that it does not maintain PRC production records, since the maintenance of such records is not required by law in the PRC. Accordingly, Universal's reported raw material input and labor amounts are based upon estimates, using samples of those candles still available to the company, rather than based upon actual company records.
With respect to Liaoning and Tianjin, two of the three factories which supplied Liaoning with its subject merchandise did not respond to the Department's request for information. We noted in our May 3, 2000 supplemental section C questionnaire that the Department may rely on facts otherwise available as a substitute for the missing information. In addition, in response to many basic supplemental
As previously described, the Department granted numerous requests for extensions of time to the respondents in order for the companies to supply the Department with the necessary information for a calculation of a reliable antidumping margin. Despite these extensions, the responses from Liaoning, Tianjin, and Universal were wholly inadequate and contained much unsubstantiated, and unverifiable information. This information is too incomplete to serve as a reliable basis for reaching a determination in this review within the meaning of section 782(e) of the Tariff Act. Therefore, we preliminarily determine that these three respondents failed to cooperate by not acting to the best of their ability. As previously noted, we similarly find that the eighteen uncooperative respondents failed to act to the best of their ability. Under section 782(c) of the Tariff Act, a respondent has a responsibility not only to notify the Department if it is unable to provide requested information, but also to provide a “full explanation and suggested alternative forms.” The uncooperative respondents that failed to respond to our requests for information did not comply with this provision of the statute. Therefore, we determine that all twenty-one respondents, both those which initially responded to our questionnaires, and those which did not, failed to cooperate by not acting to the best of their ability.
Additionally, section 776(b) of the Tariff Act provides that, if the Department finds an interested party “has failed to cooperate by not acting to the best of its ability to comply with a request for information,” the Department may use information that is adverse to the interests of the party as facts otherwise available. Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” Statement of Administrative Action (“SAA”) accompanying the URAA, H.R. Doc. No. 103-316 at 870 (1994). It is reasonable to assume that if the eighteen respondents that did not respond at all could have demonstrated that their actual dumping margins were lower than the PRC-wide rate established in the less-than-fair value (LTFV) investigation, they would have participated in this review and attempted to do so. Furthermore, the Department, in assigning adverse facts available to Liaoning, Tianjin, and Universal, is aware that “an affirmative finding of bad faith on the part of the respondent is not required before the Department may make an adverse inference.” Antidumping Duties; Countervailing Duties: Final Rule, 62 FR 27296, 27340 (May 19, 1997) (Final Rule).
Section 776(b) of the Tariff Act authorizes the Department to use as adverse facts available “secondary information,” including information derived from the petition, the final determination from the LTFV investigation, a previous administrative review, or any other information placed on the record. Section 776(b) of the Tariff Act requires the Department to corroborate, to the extent practicable, secondary information used as facts available. The SAA further provides that “corroborate” means simply that the Department will satisfy itself that the secondary information to be used has probative value. See SAA at 870. Thus, to corroborate secondary information, the Department will examine the reliability and relevance of the information used.
The Department's practice when selecting an adverse rate from among the possible sources of information is to ensure that the margin is sufficiently adverse “as to effectuate the purpose of the facts available role to induce respondents to provide the Department with complete and accurate information in a timely manner.” Static Random Access Memory Semiconductors from Taiwan; Final Determination of Sales at Less than Fair Value, 63 FR 8909, 8932 (February 23, 1998). The Department also considers the extent to which a party may benefit from its own lack of cooperation in selecting a rate. See Roller Chain, Other than Bicycle, from Japan; Notice of Final Results and Partial Recission of Antidumping Duty Administrative Review, 62 FR 60472, 60477 (November 10, 1997).
In accordance with Department practice, as adverse facts available we have preliminarily assigned these exporters the highest dumping margin determined in any segment of this proceeding (54.21 percent), which is the PRC-wide rate established in the LTFV investigation, and is the only rate available for use as facts available. See Antidumping Duty Order: Petroleum Wax Candles From the People's Republic of China, 51 FR 30686 (August 28, 1986). With respect to corroboration of this margin we note that, unlike other types of information, such as input costs or selling expenses, there are no independent sources for calculated dumping margins. Thus, in an administrative review, if the Department chooses as total adverse facts available a calculated dumping margin from a prior segment of the proceeding, it is not necessary to question the reliability of the margin for that time period. See Grain-Oriented Electrical Steel From Italy; Preliminary Results of Antidumping Duty Administrative Review, 61 FR 36551, 36552 (July 11, 1996). With respect to the relevance aspect of corroboration, however, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Accordingly, we have used the highest calculated margin from any prior segment of the proceeding as the margin for these preliminary results because there is no evidence on the record indicating that such a calculated margin is not appropriate as adverse facts available. This rate is currently applicable to all exports of subject merchandise. Thus, if any respondent could demonstrate that its margin is lower, we presume that it would have cooperated in attempting to do so.
The Department presumes that a single dumping margin is appropriate for all exporters in a non-market economy (NME) country. See Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People's Republic of China, 59 FR 22585 (May 2, 1994). The Department may, however, consider requests for a separate rate
We preliminarily determine that Liaoning, Tianjin, Universal and the remaining eighteen respondents are not eligible for a separate rate due to our preliminary determination that the most appropriate antidumping margin is based upon total adverse facts available. Although Liaoning, Tianjin, and Universal initially responded to the separate rates section of the questionnaire, their responses were so wholly inadequate and unreliable that they did not establish that separate rates were warranted.
We preliminarily determine that the following dumping margins exists for the period August 1, 1998, through July 30, 1999:
The Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. This rate will be assessed uniformly on all entries of subject merchandise made during the POR. The Department will issue appraisement instructions directly to the Customs Service.
Furthermore, the following cash deposit requirements will be effective upon publication 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, as provided by section 751(a)(1) of the Tariff Act: (1) For previously reviewed or investigated companies that have a separate rate and for which no review was requested, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (2) for all other PRC exporters, the cash deposit rate will be the rate established in the final results of this administrative review; and (3) the cash deposit rate for non-PRC exporters will be the rate applicable to the PRC supplier of the exporter. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative reviews.
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 notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act.
Import Administration, International Trade Administration, Department of Commerce.
September 7, 2000.
Paul Stolz at (202) 482-4474 or Howard Smith at (202) 482-5193, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave, NW., Washington, DC 20230.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department of Commerce (the Department) to make a preliminary determination within 245 days after the last day of the anniversary month of an order or finding for which a review is requested and a final determination within 120 days after the date on which the preliminary determination is published. However, if it is not practicable to complete the preliminary results of review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the preliminary determination to a maximum of 365 days and for the final results to 180 days (or 300 days if the Department does not extend the time limit for the preliminary results) from the date of publication of the preliminary results.
On February 28, 2000, the Department published a notice of initiation of administrative review of the antidumping duty order on potassium permanganate from the People's Republic of China, covering the period January 1, 1999 through December 31, 1999 (65 FR 10466). The preliminary results are currently due no later than October 2, 2000.
We determine that it is not practicable to complete the preliminary results of this review within the original time limit. Therefore the Department is extending the time limit for completion of the preliminary results until no later than January 30, 2001. See Decision Memorandum from Thomas F. Futtner to Holly A. Kuga, dated concurrently with this notice, which is on file in the Central Records Unit, Room B-099 of the main Commerce building. We intend to issue the final results no later than 120 days after the publication of the preliminary results notice.
This extension is in accordance with section 751(a)(3)(A) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
September 7, 2000.
Mark Manning or Magd Zalok at (202) 482-3936 and (202) 482-4162, respectively; AD/CVD Enforcement, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department's regulations are references to the provisions codified at 19 CFR Part 351 (2000).
In the petition filed on June 28, 2000, the petitioner alleged that there is a reasonable basis to believe or suspect that critical circumstances exist with respect to imports of steel concrete reinforcing bars (rebar) from the People's Republic of China (PRC) and Poland.
On August 14, 2000, the International Trade Commission (ITC) determined that there is a reasonable indication of material injury to the domestic industry from imports of rebar from the PRC and Poland, among others.
In accordance with 19 CFR 351.206(c)(2)(i), because the petitioner submitted critical circumstances allegations more than 20 days before the scheduled date of the preliminary determinations, the Department must issue preliminary critical circumstances determinations not later than the date of the preliminary determinations. In a policy bulletin issued on October 8, 1998, the Department stated that it may issue preliminary critical circumstances determinations prior to the date of the preliminary determinations of dumping, assuming sufficient evidence of critical circumstances is available (see Change in Policy Regarding Timing of Issuance of Critical Circumstances Determinations, 63 FR 55364). In accordance with this policy, at this time we are issuing preliminary critical circumstances decisions in the investigations of imports of rebar from the PRC and Poland, for the reasons discussed below and in the August 30, 2000, Memorandum from Tom Futtner and Gary Taverman to Holly A. Kuga regarding: Antidumping Duty Investigations of Steel Concrete Reinforcing Bar from the People's Republic of China and Poland—Preliminary Determinations of Critical Circumstances (Critical Circumstances Preliminary Determinations Memorandum).
Section 733(e)(1) of the Act provides that the Department will preliminarily determine that critical circumstances exist if there is a reasonable basis to believe or suspect that: (A)(i) There is a history of dumping and material injury by reason of dumped imports in the United States or elsewhere of the subject merchandise, or (ii) the person by whom, or for whose account, the merchandise was imported knew or should have known that the exporter was selling the subject merchandise at less than its fair value and that there was likely to be material injury by reason of such sales, and (B) there have been massive imports of the subject merchandise over a relatively short period. Section 351.206(h)(1) of the Department's regulations provides that, in determining whether imports of the subject merchandise have been “massive,” the Department normally will examine: (i) The volume and value of the imports; (ii) seasonal trends; and (iii) the share of domestic consumption accounted for by the imports. In addition, section 351.206(h)(2) of the Department's regulations provides that an increase in imports of 15 percent during the “relatively short period” of time may be considered “massive.”
Section 351.206(i) of the Department's regulations defines “relatively short period” as normally being the period beginning on the date the proceeding begins (
In determining whether the above criteria have been satisfied, we examined: (1) The evidence presented in the petition; (2) recent import statistics released by the Census Bureau after the initiation of the LTFV investigations; and (3) the ITC preliminary injury determinations.
Because we are not aware of any existing antidumping order in any country on rebar from the PRC or Poland, we do not find a history of dumping from the PRC or Poland pursuant to section 733(e)(1)(A)(i). However, the Department may look to the second criterion for determining knowledge of dumping.
In determining whether there is a reasonable basis to believe or suspect that an importer knew or should have known that the exporter was selling rebar at LTFV, pursuant to section 733(e)(1)(A)(ii) of the Act, the Department's normal practice is to consider margins of 25 percent or more sufficient to impute knowledge of dumping. See Preliminary Determination of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate From the People's Republic of China, 62 FR 31972, 31978 (June 11, 1997). In the instant cases, given that we have not yet made a preliminary finding of dumping, the most reasonable source of information concerning knowledge of dumping is the petition itself. In the petition, the petitioner calculated estimated dumping margins of 59.98 percent for the PRC and 53.54 percent for Poland. Since these estimated dumping margins exceed the 25 percent threshold, we have preliminarily imputed knowledge of dumping to
In determining whether there is a reasonable basis to believe or suspect that an importer knew or should have known that there was likely to be material injury by reason of dumped imports, under section 733(e)(1)(A)(ii) of the Act, the Department normally will look to the preliminary injury determinations of the ITC. If the ITC finds a reasonable indication of present material injury to the relevant U.S. industry, the Department will determine that a reasonable basis exists to impute importer knowledge that there was likely to be material injury by reason of dumped imports. See Final Determination of Sales at Less Than Fair Value: Certain Cut-To-Length Carbon Steel Plate from the People's Republic of China, 62 FR 61964 (November 20, 1997). In the instant cases, the ITC has found that a reasonable indication of present material injury due to dumping exists for all imports of rebar from the PRC and Poland.
In determining whether there are “massive imports” over a “relatively short period,” pursuant to section 733(e)(1)(B) of the Act, the Department normally compares the import volume of the subject merchandise for at least three months immediately preceding the filing of the petition (
In this case, the petitioner argues that importers, exporters, or producers of rebar from the PRC and Poland had reason to believe that an antidumping proceeding was likely before the filing of the petition. Based upon information contained in the petition, we found that press reports and published statements were sufficient to establish that, by December 1999, importers, exporters, and foreign producers knew or should have known that a proceeding was likely concerning rebar from the PRC and Poland. Accordingly, we examined the increase in import volumes from July 1999 through December 1999, as compared to the import volume during January 2000 through June 2000, and found that imports of rebar from the PRC increased by 182.76 percent and that imports from Poland increased from zero to over 58,000 metric tons, an unquantifiable percent.
Given the above-referenced reasons, we preliminarily determine that there is a reasonable basis to believe or suspect that critical circumstances exist for imports of rebar from the PRC and Poland.
In accordance with section 733(e)(2) of the Act, upon issuance of affirmative preliminary determinations of sales at LTFV in the investigations with respect to the PRC and Poland, the Department will direct the U.S. Customs Service to suspend liquidation of all such entries of rebar from the PRC and Poland that are entered, or withdrawn from warehouse, for consumption on or after 90 days prior to the date of publication in the
We will make final determinations concerning critical circumstances for the PRC and Poland when we make our final determinations regarding sales at LTFV in those investigations, which will be 75 days (unless extended) after the preliminary LTFV determinations.
In accordance with section 733(f) of the Act, we have notified the ITC of our determinations. This notice is issued and published pursuant to section 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of countervailing duty administrative review.
The Department of Commerce (the Department) is conducting an administrative review of the countervailing duty order on certain carbon steel products from Sweden. The period covered by this administrative review is January 1, 1998 through December 31, 1998. For information on the net subsidy for each reviewed company, as well as for all non-reviewed companies, please see the “Preliminary Results of Review” section of this notice. If the final results remain the same as these preliminary results of administrative review, we will instruct the U.S. Customs Service (Customs) to assess countervailing duties as detailed in the “Preliminary Results of Review” section of this notice. Interested parties are invited to comment on these preliminary results. (
September 7, 2000.
Tipten Troidl or Gayle Longest, AD/CVD Enforcement, Office VI, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-1767 and (202) 482-3338, respectively.
On October 4, 1985, the Department published in the
In accordance with 19 CFR 351.213(b), this review covers only those producers or exporters of the subject merchandise for which a review was specifically requested. The producer/exporter of the subject merchandise for which the review was requested is SSAB. This review covers six programs.
Unless otherwise indicated, all citations to the statute are references to the provisions of the Tariff Act of 1930 (the Act), as amended by the Uruguay Round Agreements Act (URAA) effective January 1, 1995. In addition, unless indicated, all citations to the Department's regulations are to the current regulations as codified at 19 CFR Part 351 (1999) and to the substantive countervailing duty regulations published in the
Imports covered by this review are shipments of certain carbon steel products from Sweden. These products include cold-rolled carbon steel, flat-rolled products, whether or not corrugated, or crimped: whether or not pickled, not cut, not pressed and not stamped to non-rectangular shape; not coated or pleated with metal and not clad; over 12 inches in width and of any thickness; whether or not in coils. During the review period, such merchandise was classifiable under the Harmonized Tariff Schedule (HTS) item numbers 7209.11.0000, 7209.12.0000, 7209.13.0000, 7209.21.0000, 7209.22.0000, 7209.23.0000, 7209.24.5000, 7209.31.0000, 7209.32.0000, 7209.33.0000, 7209.34.0000, 7209.41.0000, 7209.43.0000, 7209.44.0000, 7209.90.0000, 7211.30.5000, 7211.41.7000 and 7211.49.5000. The written description remains dispositive.
Section 751(a)(3)(A) of the Act requires the Department to make a final determination within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time period for the final results to 180 days. Due to the complex nature of the issues in this case, we have determined that it is not practicable to complete the final results for this review within the original time limit. Therefore, the Department is extending the time limit for the final results to 180 days from the date of publication of these preliminary results.
In the current review, there are no new non-recurring subsidies. All of the non-recurring grants under review were provided prior to the period of review (POR) and allocation periods for these grants were established during prior segments of this proceeding. Therefore, for the purposes of these results, the Department is using the original allocation period assigned to each grant.
SSAB is the only Swedish company that produces and exports the subject merchandise. SSAB has sold several productive units and the company was partially privatized in 1987 and in 1989. In 1994, SSAB was completely privatized.
The Department is aware that on June 20, 2000, the Court of Appeals for the Federal Circuit (CAFC) denied the Department's petition for rehearing and suggestion for rehearing
The Department invites interested parties to comment in their case briefs on the implications of the
We followed the Change in Ownership methodology described in the General Issues Appendix (
Under three separate pieces of legislation, SSAB received structural loans from the Government of Sweden (GOS) for investment in plant and equipment. The loans were disbursed in installments between 1978 and 1983. Two loans were outstanding during the POR.
According to the terms of the loans, both structural loans were interest-free for three years from the date of disbursement. After that time, the loans incurred interest at a fixed rate of five percent per annum.
In the final determinations of the two original investigations of the subject merchandise,
To calculate the benefit from the fixed-rate structural loans, we employed the long-term loan methodology described in the 1994 administrative review of this order.
We reduced the benefit attributable to the POR from the fixed-rate structural loans according to the methodology outlined in the “Change in Ownership” section above. We then aggregated the benefits for the fixed interest rate loans and divided the results by SSAB's total sales for 1998. On this basis, we preliminarily determine the net subsidy from the two structural loans to be 0.11 percent
The GOS provided reconstruction loans to SSAB between 1979 and 1985 to cover operating losses, investment in certain plant and equipment, and for employment promotion purposes. The loans were interest-free for three years, after which a fixed interest rate was charged. According to the terms of the loans, up to half of the outstanding amount of the loan could be written-off after the second calendar year following the disbursement. The remainder of the loan could be written off entirely at the end of the ninth calendar year after disbursement. Pursuant to the terms of the reconstruction loans, the GOS wrote off large portions of principal and accrued interest on these loans between 1980 and 1990.
In the
To calculate the benefit, we treated the written-off portions of the reconstruction loans as countervailable grants received in the years the loans were forgiven and attributed the benefit for the POR from this program using the methodology described in the “Allocation Methodology” section above. We then reduced the benefits from these grants attributable to the POR according to the methodology outlined in the “Change in Ownership” section above. We then divided the results by SSAB's total sales for 1998. On this basis, we preliminarily determine the net subsidy from the three allocable forgiven reconstruction loans to be 0.51 percent
The Swedish National Board for Industrial and Technical Development (NUTEK) provides research and development loans and grants to Swedish industries for R&D purposes. One type of R&D loan (industrial development loans) is mostly aimed at “new” industries such as the biotechnical, electronic, and medical industries. Another type of R&D loan (energy efficiency loans) is directed towards big energy consumers.
Under this program, SSAB had several R&D loans outstanding during the POR on which it did not make either principal or interest payments. In the last administrative review of this order, we found that the benefit provided from these loans was less than 0.005 percent
In this administrative review, SSAB reported that it also received a NUTEK R&D grant for the application and further development of Information Technology concerning improved energy utilization and control of industrial processes. Under section 351.524(b)(2) of the CVD Regulations, this grant would be expensed in the year of receipt, which is the POR. The benefit from this grant is 0.01 percent
In accordance with 19 CFR 351.221(b)(4)(i), we calculated an individual subsidy rate for the producer/exporter subject to this administrative review. For the period January 1, 1998, through December 31, 1998, we preliminarily determine the net subsidy for SSAB to be 0.62 percent
If the final results of this review remain the same as these preliminary results, the Department intends to instruct Customs to assess countervailing duties as indicated above. The Department also intends to instruct Customs to collect cash deposits of estimated countervailing duties as indicated above of the f.o.b. invoice price on all shipments of the subject merchandise from reviewed companies, entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review.
Because the URAA replaced the general rule in favor of a country-wide rate with a general rule in favor of individual rates for investigated and reviewed companies, the procedures for establishing countervailing duty rates, including those for non-reviewed companies, are now essentially the same as those in antidumping cases, except as provided for in section 777A(e)(2)(B) of the Act. The requested review will normally cover only those companies specifically named.
We will instruct Customs to continue to collect cash deposits for non-reviewed companies at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to non-reviewed companies covered by this order will be the rate for that company established in the most recently completed administrative proceeding conducted under the URAA. If such a review has not been conducted, the rate established in the most recently completed administrative proceeding pursuant to the statutory provisions that were in effect prior to the URAA amendments is applicable.
Pursuant to 19 CFR 351.224(b), the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within five days after the date of the public announcement of this notice. Pursuant to 19 CFR 351.309, interested parties may submit written comments in response to these preliminary results. Unless otherwise indicated by the Department, case briefs must be submitted within 30 days after the date of publication of this notice, and rebuttal briefs, limited to arguments raised in case briefs, must be submitted no later than five days after the time limit for filing case briefs, unless otherwise specified by the Department. Parties who submit argument in this proceeding are requested to submit with the argument: (1) A statement of the issue, and (2) a brief summary of the argument. Parties submitting case and/or rebuttal briefs are requested to provide the Department copies of the public version on disk. Case and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f). Also, pursuant to 19 CFR 351.310, within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments to be raised in the case and rebuttal briefs. Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs, that is, thirty-seven days after the date of publication of these preliminary results.
Representatives of parties to the proceeding may request disclosure of proprietary information under administrative protective order no later than 10 days after the representative's client or employer becomes a party to the proceeding, but in no event later than the date the case briefs, under 19 CFR 351.309(c)(ii), are due. The Department will publish the final results of these administrative reviews, including the results of its analysis of issues raised in any case or rebuttal brief or at a hearing.
This administrative review is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act (19 U.S.C. 1675(a)(1) and 19 U.S.C. 1677f(i)(1)).
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of countervailing duty administrative review.
The Department of Commerce (the Department) is conducting an administrative review of the countervailing duty order on certain cut-to-length carbon steel plate from Mexico for the period January 1, 1998, through December 31, 1998. For information on the net subsidy for the reviewed company as well as for non-reviewed companies, please see the “Preliminary Results of Review” section of this notice. If the final results remain the same as these preliminary results of administrative review, we will instruct the U.S. Customs Service (Customs) to assess countervailing duties as detailed in the “Preliminary Results of Review” section of this notice. Interest parties are invited to comment on these preliminary results. (
September 7, 2000.
Eric B. Greynolds or Michael Grossman, AD/CVD Enforcement, Office VI, Group II, Import Administration, U.S. Department of Commerce, Room 4012, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-2786.
On August 17, 1993, the Department published in the
On January 18, 2000, petitioners submitted a new subsidy allegation in the above-referenced administrative review. Specifically, petitioners alleged that AHMSA received a countervailable loan from Banobras, a government development bank. Upon review of the information submitted by petitioners, we have declined to initiate on this allegation. For more information regarding petitioners' new subsidy allegation, see the memorandum, “New Subsidy Allegations,” to Melissa G. Skinner, Director of Office of AD/CVD Enforcement VI, from the Team, dated August 25, 2000, a public document on file in the Central Records Unit (CRU), Room B-099 of the Main Department of Commerce Building (New Subsidy Allegations Memorandum).
Petitioners also submitted other comments regarding assumption of AHMSA's debt, “committed investments,” and the use of uncreditworthy benchmarks. Our review of these allegations reveals that these are comments on the methodology which petitioners argue should be employed by the Department in this administrative review. Therefore, these comments do not require an initiation of an alleged subsidy. For more information, see the New Subsidy Allegations Memorandum. Thus, because we have determined that these allegations concern methodological issues, we have addressed the debt assumption and “committed investment” allegations in the section titled “Petitioner's Comments Concerning ‘Committed Investment’ and Assumption of AHMSA's Debt,” below. We have addressed petitioner's comments regarding the use of uncreditworthy benchmarks in the “Creditworthiness” section, below.
On April 11, 2000, we extended the period for completion of the preliminary results pursuant to section 751(a)(3) of the Tariff Act of 1930, as amended (the Act).
In accordance with 19 CFR 351.213(b), this review covers only those producers or exporters for which a review was specifically requested. Accordingly, this review covers AHMSA. This review covers 17 programs.
Unless otherwise indicated, all citations to the statute are references to the provisions of the Tariff Act of 1930 (the Act), as amended by the Uruguay Round Agreements Act (URAA) effective January 1, 1995. In addition, unless otherwise indicated, all citations to the Department's regulations are to the current regulations as codified at 19 CFR part 351 (1999) and to the substantive countervailing duty regulations published in the
The products covered by this administrative review are certain cut-to-length carbon steel plates. These products include hot-rolled carbon steel universal mill plates (
Section 751(a)(3)(A) of the Act requires the Department to make a final determination within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time period for the final results to 180 days. Due to the complex nature of the issues in this case, we have determined that it is not practicable to complete the final results for this review within the original time limit. Therefore, the Department is extending the time limit for the final results to 180 days from the date of publication of these preliminary results.
Section 351.524(d)(2) of the CVD Regulations states that we will presume the allocation period for non-recurring subsidies to be the average useful life (AUL) of renewable physical assets for the industry concerned, as listed in the Internal Revenue Service's (IRS) 1977 Class Life Asset Depreciation Range System as updated by the Department of Treasury. The presumption will apply unless a party claims and establishes that these tables do not reasonably reflect the AUL of the renewable physical assets for the company or industry under investigation, and the party can establish that the difference between the company-specific or country-wide AUL for the industry under investigation is significant.
In this administrative review, the Department is considering both non-recurring subsidies previously allocated in the initial investigation and non-recurring subsidies received since the original period of investigation (POI). Regarding non-recurring subsidies previously allocated in the initial investigation, the Department is using, for the purposes of the preliminary results, the original allocation period of 15 years. For non-recurring subsidies received since the original investigation, no party to the proceeding claimed that the AUL listed in the IRS tables did not reasonably reflect the AUL of the renewable physical assets for the firm or industry under investigation. Therefore, in accordance with section 351.524(d)(2) of the CVD Regulations, we have allocated, where applicable, all of AHMSA's non-recurring subsidies received since the original investigation over 15 years, the AUL listed in the IRS tables for the steel industry.
Petitioners state that, at the time of privatization, in addition to making a cash payment, Grupo Acerero del Norte (GAN) committed to future investments in AHMSA.
In Certain Cut-to-Length Carbon Steel Plate from Mexico: Final Results of Countervailing Duty Administrative Review, 65 FR 13368 (March 13, 2000) (Steel Products 2000), the Department examined the “committed investment” and found it to be not countervailable under the prevailing privatization methodology. Specifically, in Comment 5 to the Decision Memorandum to Steel Products 2000, we stated:
“under the * * * current privatization methodology, the Department accounts for the purchase price in the calculation of the amount of subsidies passing through to the privatized entity. Therefore, if, as in this particular case, the amount of cash paid for the privatized company is reduced for committed investment, there is a reduction in the presumed amount of the subsidies that pass through to the new owner. Otherwise stated, a lower cash price increases the amount of the previously bestowed subsidies that pass through.”
Petitioners also argue that, in addition to paying $145 million in cash, and committing to make investments in AHMSA, GAN agreed to assume $350 million of AHMSA's debt, as part of the privatization transaction. Petitioners allege that the GOM agreed to a less
In response to these allegations, AHMSA states that the Department thoroughly investigated and verified the entire privatization transaction in the Final Affirmative Countervailing Duty Determination: Certain Steel Products from Mexico, 58 FR 37352 (July 9, 1993) (Steel Products from Mexico), and did not find any aspect of the transaction countervailable. They further state that with regard to the “committed investment” allegation, the Department found it to be not countervailable in Steel Products 2000 and that no new facts have arisen to warrant any further investigation of the allegation at this time.
In light of the United States Court of Appeals for the Federal Circuit (CAFC) recent ruling in
We welcome any comments interested parties may have with regard to these issues, as well as the appropriate approach the Department should take with respect to privatization in general.
We have previously determined AHMSA to be uncreditworthy during the years 1983 through 1986. No new information or evidence of changed circumstances was presented in this review to warrant any reconsideration of these findings. However, because the request for this administrative review was filed after January 1, 1999, the Department's CVD Regulations now govern this review. As a result, though our determination regarding AHMSA's creditworthiness during the years 1983 through 1986 remains unchanged, we have, in accordance with our CVD Regulations, used a different methodology to calculate AHMSA's uncreditworthy discount rates in those years in which AHMSA was determined to be uncreditworthy. For those years in which AHMSA was determined to be uncreditworthy, we constructed a discount rate for uncreditworthy companies, as described in section 351.505(a)(3)(iii) of the CVD regulations.
In Steel Products 2000, the presence of significant, intermittent inflation in Mexico's economy resulted in the Department utilizing a unique loan-based methodology to calculate the benefit from AHMSA's non-recurring subsidies. We explained in Steel Products 2000, that we treated the subsidy as a series of loans that were rolled over each year at the prevailing nominal interest rate and applied the creditworthy or uncreditworthy interest rates in each year depending on the company's creditworthy status in that year.
In Steel Products from Mexico and Steel Products 2000, we did not explicitly address the issue of whether the creditworthy decision for this unique methodology should be made at the point of original bestowal or on a year-by-year basis.
Regarding the discount rate used in the Department's standard grant allocation methodology, section 351.524(d)(3)(i) of the CVD Regulations states that when allocating a benefit over time and determining the annual benefit amount that should be assigned to a particular year, the Secretary will select a discount rate based upon the information available in the year in which the government agreed to provide the subsidy. Regarding the determination of a firm's creditworthy status, section 351.505(a)(4)(i) of the CVD Regulations state that a firm will be considered uncreditworthy if the Secretary determines that, based on information available at the time of the government-provided loan, the firm could not have obtained long-term loans from conventional commercial sources. Thus, the CVD Regulations make clear that the Department should use the discount rate in effect at the time of receipt, be it creditworthy or uncreditworthy, when using the standard grant allocation methodology to assign an annual benefit amount to a particular year.
As discussed below in the “Inflation Methodology” section of these preliminary results, the unique circumstances of this case have led us to use a loan-based methodology to allocate AHMSA's peso-denominated non-recurring benefits over time. A key aspect of this loan-based methodology is the use of the annual discount rate outstanding in each year of the allocation period, as opposed to the Department's standard practice of applying to the entire allocation period the discount rate outstanding at the time the grant was received. Thus, section 351.524(d)(3)(i) of the CVD Regulations does not directly address our methodology of non-recurring benefits over time. Although this loan-based methodology is a departure from the Department's standard grant allocation methodology, for the purposes of these preliminary results, we find that the use of the loan based methodology is not a sufficient reason to alter the Department's long-standing practice of applying a firm's creditworthy status (based on the firm's creditworthiness at the time of receipt) to the entire allocation period.
In November 1991, the GOM sold all of its ownership interest in AHMSA. Prior to privatization, AHMSA was
The Department is aware that on June 20, 2000, the CAFC denied the Department's petition for rehearing and suggestion for rehearing
The Department invites interested parties to comment in their case briefs on the implications of the Delverde decision on this proceeding.
Under the Change in Ownership methodology described in the
We then took the simple average of the ratios of subsidies to net worth. This simple average of the ratios serves as a reasonable surrogate for the portion that subsidies constitute of the overall value of the company. Next, we multiplied the average ratio by the purchase price to derive the portion of the purchase price attributable to repayment of prior subsidies. Finally, we reduced the benefit streams of the prior subsidies by the ratio of the repayment amount to the net present value of all remaining benefits at the time of privatization.
In Steel Products from Mexico, we determined, based on information from the GOM, that Mexico experienced significant inflation from 1983 through 1988.
Because Mexico experienced significant inflation during only a portion of the 15-year allocation period, indexing for the entire period or converting the non-recurring benefits into U.S. dollars at the time of receipt (
Since we assumed that an infusion/grant given was equivalent to a 15-year loan at the current rate in the first year, a 14-year loan at current rates in the second year and so on, the benefit after the 15-year period would be zero, just as with the Department's grant amortization methodology. Because nominal interest rates were used, the effects of inflation were already incorporated into the benefit. This methodology was upheld in
In Steel Products 2000, we analyzed information provided by the GOM and found that Mexico, again, experienced significant, intermittent inflation during the period 1991 through 1997.
No new information or evidence of changed circumstances has been presented thus far in this review to warrant any reconsideration of these findings. Thus, for the purposes of these preliminary results, we have continued to use the benefit calculation methodology from Steel Products from Mexico for all non-recurring, peso-denominated grants received prior to and since the POI.
In Steel Products from Mexico, 58 FR 37352, 37356, we determined that the GOM made equity infusions into AHMSA in 1977, each year from 1979 through 1987, 1990 and 1991. Shares of common stock were issued for all of these infusions. The GOM made these equity infusions annually as part of its budgetary process as per the Federal Law on State Companies. At the time of these infusions, AHMSA was almost entirely a government-owned company.
In Steel Products from Mexico, 58 FR 37352, 37356, we found AHMSA to be unequityworthy in each year from 1979 through 1987, and in 1990 and 1991. Accordingly, we determined that the equity infusions by the GOM into AHMSA in these years were countervailable. In Steel Products 2000, we continued to find this program countervailable.
To calculate the countervailable benefit in the POR, we used the grant allocation methodology for intermittent, significant inflation described above. We then divided the benefit attributable to the POR, adjusted to reflect the change in ownership described above,
In 1986, the GOM negotiated an agreement with AHMSA through which the GOM assumed a portion of AHMSA's debt. One part of this debt assumption was recorded as a reduction in the company's accumulated past losses. For a second part, shares of stock were issued; a third part was held for future capital increases for which new stock was issued to the GOM in 1987. In Steel Products from Mexico, 58 FR 37352, 37356, we treated the full amount of debt assumed by the GOM in 1986 as a countervailable, non-recurring grant. We used the same approach in Steel Products 2000.
To calculate the countervailable benefit in the POR, we used the grant allocation methodology for intermittent, significant inflation described above. We then divided the benefit attributable to the POR, adjusted to reflect the change in ownership described above, by the total sales of AHMSA during the same period. On this basis, we preliminarily determine the net subsidy for this program to be 2.21 percent
In 1987, the GOM negotiated an agreement with foreign creditors to restructure the debt of AHMSA. The GOM again negotiated on behalf of AHMSA debt restructuring agreements in 1988 and 1990. Under these agreements, the GOM purchased AHMSA's debts, which were denominated in several foreign currencies, from AHMSA's foreign creditors in exchange for GOM debt. The GOM thereby became the creditor for loans included in these agreements.
During the investigation of Steel Products from Mexico, the GOM claimed that AHMSA's principal repayment obligations remained the same after the debt restructuring. However, in Steel Products from Mexico, we could not verify that none of AHMSA's principal obligations on its debt was forgiven in the 1988 and 1990 debt restructuring agreements. Thus, based upon the facts available to the Department at the time of the investigation, we assumed that the principal had been forgiven in the amount of the discount the GOM had received when purchasing the debt from AHMSA's foreign creditors. Accordingly, we treated the forgiven principal as a non-recurring grant.
In Steel Products 2000, AHMSA claimed that, in June 1996, it repaid its restructured debt in the form of a discounted prepayment to the GOM, thereby extinguishing its financial obligations to the GOM. During verification of the questionnaire response submitted during the administrative review, we learned that, in order to determine the amount of the discounted prepayment that AHMSA was to make in June of 1996, the company and the GOM created amortization tables for each of the foreign currency loans. Next, they converted these payment streams into U.S. dollars and calculated the net present value for each of them. Then, they summed the U.S. dollar denominated net present values to derive the amount of the discounted prepayment to be made in U.S. dollars.
In Steel Products 2000, we determined that AHMSA's discounted prepayment of its 1988 and 1990 restructured debts constituted a countervailable benefit because AHMSA's discounted prepayment resulted in a reduction of the principal owed by AHMSA on this debt.
Because the principal forgiven was denominated in U.S. dollars and, thus, was unaffected by Mexico's intermittent significant inflation, we used the Department's standard non-recurring grant methodology to allocate the benefit to the POR. We used as our discount rate the weighted-average of AHMSA's fixed-rate, U.S. dollar loans that were received during the year of receipt. We then converted the U.S. dollar denominated benefit into pesos using the average annual peso/U.S. dollar exchange rate for the POR. We then divided the benefit attributable to the POR by AHMSA's total sales during the same period. On this basis, we preliminarily determine the net subsidy for this program to be 0.56 percent
The Instituto Mexicano de Investigaciones Siderurgicas (IMIS), or the Mexican Institute of Steel Research, was a government-owned research and development organization that performed independent and joint venture research with the iron and steel industry.
In Steel Products from Mexico, 58 FR 37352, 37359, the Department found that IMIS's activities with AHMSA fell into two categories: joint venture activities and non-joint venture activities. We determined that IMIS's non-joint venture activities with AHMSA were not countervailable. However, the Department determined that joint venture activities were countervailable, and we treated IMIS's contributions to joint venture activities as non-recurring grants.
During verification in Steel Products from Mexico, AHMSA submitted new information indicating that the company utilized services and generated purchase orders related to its activities with IMIS. In Steel Products from Mexico, we found that AHMSA's use of IMIS services was related to its joint venture activities and, therefore, was countervailable. In addition, because the Department was unable to determine whether the purchase orders were related to AHMSA's joint venture activities, we determined, as facts available, that funds linked to these purchase orders provided countervailable benefits. We used the same approach in Steel Products 2000.
During Steel Products 2000, the GOM reported that IMIS was terminated by Government decree on November 4, 1991. However, because the allocated benefits of the non-recurring benefits that AHMSA received under this program extend into the POR, this program continues to confer a countervailable benefit.
To calculate the countervailable benefit in the POR, we used the grant allocation methodology for intermittent, significant inflation described above. We then divided the benefit attributable to the POR, adjusted to reflect the change in ownership described above, by the total sales of AHMSA during the same period. On this basis, we preliminarily determine the net subsidy for this program to be 0.05 percent
During the verification of Steel Products from Mexico, the Department discovered that the GOM loaned AHMSA money to cover the cost of personnel lay-offs which the GOM felt were necessary to make AHMSA more attractive to potential purchasers. The Department learned that this loan did not accrue interest after September 30, 1991. Further, the Department learned that the GOM was allowing the privatized AHMSA to repay this loan with the transfer of AHMSA assets back to the GOM. The assets AHMSA was using to repay the loan were assets which GAN, the purchaser of AHMSA, had not wished to purchase but which the GOM included in the sale package.
Since the information about this financing and its repayment came to light only at verification of the questionnaire responses submitted during the investigation, we were unable to determine whether this loan relieved AHMSA of an obligation it would otherwise have borne with respect to the laid-off workers. Thus, in Steel Products from Mexico, 58 FR 37352, 37361, we calculated the benefit by treating the financing as an interest-free loan.
In Steel Products 2000, AHMSA claimed that it extinguished its pre-privatization lay-off financing debt with the transfer of the “unnecessary assets.” In Steel Products 2000, we noted that the record of the investigation indicated that these assets were included by the GOM in the sale of AHMSA despite the fact that GAN, the purchaser of AHMSA, indicated that it did not wish to purchase those assets, and GAN's bid for AHMSA did not include any funds for those assets.
Although in Steel Products 2000, we noted that a loan that provides countervailable benefits normally ceases to do so once it has been fully repaid, we determined that the benefit to AHMSA was essentially in the form of a grant. Specifically, in Steel Products 2000, we determined that AHMSA repaid the loan with the transfer of assets which AHMSA's purchasers did not wish to purchase and for which they did not pay. See Preliminary Results of Steel Products from Mexico, 64 FR 48796, 48801. Thus, in Steel Products 2000, we determined that AHMSA's use of these “unnecessary assets,” assets which were effectively given to AHMSA free of charge, to repay this loan, constituted debt forgiveness of this loan. Accordingly, we determined that the entire amount of the pre-privatization lay-off financing was a non-recurring grant received in 1994, the time the loan was forgiven. No new information or evidence of changed circumstances was presented thus far in this review to warrant any reconsideration of these findings. Thus, for the purposes of these preliminary results, we continue to find that the entire amount of the pre-privatization lay-off financing constituted a non-recurring grant received in 1994, the time the loan was forgiven.
To calculate the countervailable benefit in the POR, we used the grant allocation methodology for intermittent, significant inflation described above. We then divided the benefit from the pre-privatization lay-off financing attributable to the POR, by the total sales of AHMSA during the same period. On this basis, we preliminarily determine the net subsidy for this program to be 0.74 percent
Banco Nacional de Comercio Exterior, S.N.C. (Bancomext), or the National Bank of Foreign Trade, offers a government program through which short-term financing is provided to producers or trading companies engaged in export activities. These U.S. dollar-denominated loans provide financing for working capital (pre-export loans), and export sales (export loans). AHMSA used this program during the current POR.
In Steel Products from Mexico, 58 FR 37352, 37357, we determined that, since these loans are available only to exporters, Bancomext loans are countervailable to the extent that they are provided at preferential rates. We used the same approach in Steel Products 2000.
To determine the benefit conferred under the Bancomext export loan program, we compared the interest rate charged on these loans to a benchmark interest rate. AHMSA submitted company-specific interest rate information on short and long-term loans that it received from commercial banks. We used the short-term loans to calculate a company-specific, weighted-average, U.S. dollar-denominated benchmark interest rate. We compared this company-specific benchmark rate to the interest rates charged on AHMSA's Bancomext loans and found that the interest rates charged were lower than the benchmark rates. Therefore, in accordance with section 771(5)(E)(ii) of the Act, we preliminarily determine that this program conferred a countervailable benefit during the POR because the interest rates charged on these loans were less than what a company otherwise would have had to pay on a comparable short-term commercial loan. To derive the benefit in U.S. dollars, we subtracted the amount of interest that would have been paid using the benchmark interest rate from the amount of interest that AHMSA paid under the program.
Because eligibility under this program is contingent upon exports, we divided the benefit by AHMSA's total export sales. Because AHMSA's total export sales were denominated in pesos, we converted the benefit AHMSA received under this program to pesos using the peso/U.S. dollar exchange rate that was outstanding on the date of the interest payments. On this basis, we preliminarily determine the net subsidy for this program to be 0.43 percent
The Programa de Importacion Temporal Para Producir Productos Para Exportar (PITEX), or the Program for Temporary Importation of Products for Export, was established by a decree
Machinery imported under the PITEX program may only be imported on a temporary basis. When the items' temporary status has run out, companies must either send the machines back or pay the import duties and VAT taxes that were originally exempted. In Steel Products from Mexico, 58 FR 37352, 37359, we found that machinery imported under the PITEX program could stay in Mexico for five years initially and, after five years, a manufacturer could renew the temporary stay each year. During the verification of the questionnaire responses submitted during Steel Products 2000, we learned that the PITEX program was amended such that companies that imported machinery under the program after 1998 cannot apply for an extension of their import duty exempt status. Rather, the period of temporary status is determined as the time that the machinery and spare parts take to depreciate. After the items are fully depreciated, companies must send them back or pay the import duties and VAT that were originally exempted. However, for machinery imported prior to 1998, we learned at the verification of this review that it can remain in Mexico without liability for import duties and VAT, provided that the company maintains its PITEX status.
In Steel Products from Mexico, 58 FR 37352, 37359, we determined that PITEX benefits were countervailable to the extent that they provide duty exemptions on imports of merchandise not consumed in the production of the exported product. We used the same approach in Steel Products 2000.
During the POR AHMSA used the PITEX program to import raw materials, containers and packing materials, fuels, perishable items and lubricants, and various machinery and equipment. Pursuant to section 351.519(a)(1)(ii) of the CVD Regulations, we preliminarily determine that AHMSA's import duty exemptions on spare parts, machinery and other items not consumed in the production of the exported products are countervailable.
To calculate the countervailable benefit in the POR, we determined the amount of import duty that AHMSA would have paid absent the program for each duty exemption that the company received on products not consumed in the production of the exported product. An exemption from payment on import duties is normally considered a recurring benefit and, thus, is expensed in the year of receipt.
The immediate deduction program was established in 1987 and was subject to ongoing reforms until it was repealed in 1998. The immediate deduction mechanism was available only for certain fixed assets that had not been previously used in Mexico. The immediate deduction was not available for pre-operation expenses or for deferred expenses and costs. The GOM's stated purpose for the immediate deduction program was to promote investment by allowing the future deduction of the investments, at their present value, at the time of the investment. The immediate deduction option only applied to property used permanently within Mexico but outside the metropolitan areas of Mexico City, Guadalajara, and Monterrey. With respect to small firms (
In Steel Products 2000, we determined that the immediate deduction program was specific to a region pursuant to section 771(5A)(D)(iv) of the Act. Under the immediate deduction program, the “designated geographical region” comprises all of Mexico except Mexico City, Guadalajara, and Monterrey.
In Steel Products 2000, we learned that the immediate deduction program does not change the taxable income declared by the company. Rather, the program changes the amount of deductions that a company can take on taxable income. The immediate deduction program is not an accelerated depreciation program, which Mexico does not have. Mexican companies eligible to use immediate deduction basically have two choices. Companies can either depreciate according to the normal depreciation schedule in Mexico, or they can take a one-time immediate deduction on the future depreciation of the item discounted back to its present value. If companies take the immediate deduction, they will not be able to claim all of the deductions that they would otherwise be able to take if they had utilized the standard straight line depreciation method. In other words, only a certain percentage of the value of the assets (as prescribed by law) are used in the immediate deduction calculation. Regarding the net present value calculation used to derive the immediate deduction, it is made at market rates as specified in the program legislation.
To calculate the benefit under this program, we first had to derive the amount of deductions that AHMSA would have been able to apply towards its accruable income using a straight-line method of depreciation for the assets for which AHMSA claimed an immediate deduction and then compare that amount to the deductions that AHMSA had available under the immediate deduction program.
In accordance with the method used in Steel Products 2000, we determined the amount of depreciation that AHMSA would have claimed using the straight-line method in each year that the firm used the immediate deduction program by applying straight-line depreciation rates, as supplied by the GOM, to the same physical assets that AHMSA was eligible to depreciate under the immediate deduction method.
To arrive at the benefit, we calculated the difference between the amount of immediate deduction claimed during the POR and the amount of deduction that would have been available to AHMSA using normal straight-line depreciation and multiplied this difference by Mexico's corporate income tax rate. Because the tax allowances earned under the immediate deduction program and the tax allowances that would have been earned under the straight-line depreciation method were greater than AHMSA's taxable income in 1997, we have determined that the company would not have had to use any tax allowances carried forward from prior years in order to reduce its taxable income in 1997 to zero.
Thus, when calculating the difference between the amount of immediate deduction claimed in the POR and the amount of deduction that would have been available to AHMSA using normal straight-line depreciation, we have not included any of the losses carried forward from prior years that would have been available for use on the tax return that AHMSA filed during the POR. We then divided the benefit over AHMSA's total sales. On this basis, we preliminarily determine the net subsidy to be 1.53 percent
In accordance with 19 CFR 351.221(b)(4)(i), we calculated an individual subsidy rate for the producer/exporter subject to this administrative review. For the period January 1, 1998, through December 31, 1998, we preliminarily determine the net subsidy for AHMSA to be 10.72 percent
Because the URAA replaced the general rule in favor of a country-wide rate with a general rule in favor of individual rates for investigated and reviewed companies, the procedures for establishing countervailing duty rates, including those for non-reviewed companies, are now essentially the same as those in antidumping cases, except as provided for in section 777A(e)(2)(B) of the Act. The requested review will normally cover only those companies specifically named.
We will instruct Customs to continue to collect cash deposits for non-reviewed companies at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to non-reviewed companies covered by this order are those established in the most recently completed administrative proceeding conducted under the URAA. If such a review has not been conducted, the rate established in the most recently completed administrative proceeding pursuant to the statutory provisions that were in effect prior to the URAA amendments is applicable. See Certain Steel 2000, 65 FR 13368. These rates shall apply to all non-reviewed companies until a review of a company assigned these rates is requested. In addition, for the period January 1, 1998, through December 31, 1998, the assessment rates applicable to all non-reviewed companies covered by this order are the cash deposit rates in effect at the time of entry.
Pursuant to 19 CFR 351.224(b), the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within five days after the date of the public announcement of this notice. Pursuant to 19 CFR 351.309, interested parties may submit written comments in response to these preliminary results. Unless otherwise indicated by the Department, case briefs must be submitted within 30 days after the date of publication of this notice, and rebuttal briefs, limited to arguments raised in case briefs, must be submitted no later than five days after the time limit for filing case briefs, unless otherwise specified by the Department. Parties who submit argument in this proceeding are requested to submit with the argument: (1) a statement of the issue, and (2) a brief summary of the argument. Parties submitting case and/or rebuttal briefs are requested to provide the Department copies of the public version on disk. Case and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f). Also, pursuant to 19 CFR 351.310, within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments to be raised in the case and rebuttal briefs. Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs, that is, thirty-seven days after the date of publication of these preliminary results.
Representatives of parties to the proceeding may request disclosure of proprietary information under
This administrative review is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act (19 U.S.C. 1675(a)(1) and 19 U.S.C. 1677f(i)(1)).
Commodity Futures Trading Commission.
11 a.m., Friday, September 8, 2000.
1155 21st St., NW, Washington, DC, 9th Floor Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
Commodity Futures Trading Commission.
11 a.m., Friday, September 15, 2000.
1155 21st St., NW, Washington, DC, 9th Floor Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
Commodity Futures Trading Commission.
11:30 a.m., Friday, September 15, 2000.
1155 21st St., NW, Washington, DC, 9th Floor Conference Room.
Closed.
Rule Enforcement Review.
Jean A. Webb, 202-418-5100.
Commodity Futures Trading Commission.
11 a.m., Friday, September 22, 2000.
1155 21st St., NW., Washington, DC, 9th Floor Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
Commodity Futures Trading Commission.
2 p.m., Wednesday, September 27, 2000.
1155 21st St., NW, Washington, DC, 9th Floor Conference Room.
Closed.
Rule Enforcement Review.
Jean A. Webb, 202-418-5100.
Commodity Futures Trading Commission.
11 a.m., Friday, September 29, 2000.
1155 21st St., NW., Washington, DC, 9th Floor Conference Room.
Closed.
Surveillance Matters.
Jean A. Webb, 202-418-5100.
Army Corps of Engineers, DOD.
Notice of intent.
The Santa Clara Valley Water District (District) is proposing to establish riparian vegetation and shaded riverine aquatic (SRA) cover vegetation and to improve aquatic habitat in the lower reaches of Guadalupe Creek between Almaden Expressway and Masson Dam. The Guadalupe Creek Restoration Project (GCRP) is intended to offset environmental impacts associated with future District projects.
The intent of the Draft EIR/EIS is to describe and evaluate potential effects of these actions on environmental resources in the project area. The integrated EIR/EIS will include sufficient information for compliance with both the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA), as
A public scoping period will begin on September 8, 2000 and end on October 7, 2000. Please submit comments by October 9, 2000.
Comments should be submitted to Al Gurevich, Project Manager, Santa Clara Valley Water District, 5750 Almaden Expressway, San Jose, CA 95118. Electronic mail: AlGurevi@scvwd.dst.ca.us.
1. Al Gurevich, Project Manager, Santa Clara Valley Water District, (408) 265-2607, or electronic mail: AlGurevi@scvwd.dst.ca.us.
2. Mr. Brad Hubbard, (916) 557-7054, or electronic mail: bhubbard@spk.usace.army.mil.
1. Meet the measurable mitigation objectives defined in the Mitigation and Monitoring Plan (MMP) for the Guadalupe River Project, downtown San Jose, California, including requirements for instream cover, overhead cover, water temperature, stream stability, and shade.
2. Create riparian habitat, including SRA cover vegetation, that could provide mitigation credit for future District projects.
3. Restore physical processes and ecological functions of Guadalupe Creek along the project reach.
4. Protect existing infrastructure in the project area.
5. Maintain existing flood conveyance capacity.
6. Minimize impacts on existing resources.
In addition to the primary objectives, the project also has secondary objectives that may be achieved as part of the project, if they directly or indirectly support the primary objectives. The GCRP's secondary objectives are:
1. To enhance and restore habitat for special-status fish and wildlife species, as consistent with other project objectives;
2. To improve recharge of groundwater aquifers;
3. To minimize long-term operations and maintenance requirements;
4. To minimize impacts on existing water management operations;
5. To strive to meet regional planning objectives as outlined in relevant regional planning documents; and
6. Not to preclude future recreation uses that are compatible with other project objectives.
Alternatives Considered:
In Reach 2, the existing planform of the creek could generally be maintained. Minor modifications could be made to lower floodplains in most areas, except downstream from the Meridian Avenue Bridge, where more extensive excavation could occur. Instream structures and bank stabilization structures could also be installed in this reach.
In Reach 3, project features could focus on modifying the existing channel and floodplain to reduce entrenchment, providing planting surfaces for riparian vegetation, and increasing hydraulic diversity in the channel. Instream structures could be added to stabilize the bed and banks, and woody material could be placed on bar surfaces to stabilize the bars and provide additional planting sites.
Because of the vegetation and habitat that already exist in the downstream segment of Reach 4, minimal modifications could be made to the channel in this area. However,
Soil and sediment spoils excavated during project construction could be temporarily stockpiled onsite and analyzed to ensure that potentially contaminated materials (
The intent of reducing the extent of excavation from that defined in the proposed action is to address the uncertainty associated with the amount of mercury-contaminated soil and sediment on the project site and the degree of mercury contamination. In addition, reducing the amount of excavation would reduce the extent of mercury-contaminated spoils hauled offsite. Excavation of channel banks and floodplains would still occur to create conditions conducive to plant establishment.
The intent of raising the bed of the channel is to reduce the extent of excavation of mercury-contaminated soils, reduce the amount of mercury-contaminated spoils hauled offsite, and reduce the tendency for bank erosion (and consequently reduce the transport of mercury-laden sediments downstream). In addition, this alternative is intended to restore the existing bed elevation to historical conditions.
(2) Dust emissions could be generated by excavation and grading of soils along Guadalupe Creek, and by stockpiling and offhauling of excavated soil and sediments.
2. Public comment is encouraged on the proposal to prepare the Draft EIR/EIS and on the scope of issues to be included. Please provide comments within 30 days of publication of this notice to Mr. Al Gurevich at the Santa Clara Valley Water District (see
3. The District and the Corps will continue to consult local, state, and federal agencies with regulatory or implementation responsibility for, or expertise with, the resources in the area of investigation. These include, but are not limited to, the California Department of Fish and Game, U.S. Fish and Wildlife Service, National Marine Fisheries Service, and San Francisco Bay Regional Water Quality Control Board.
2. The Final EIR/EIS is expected to be available for public review beginning in January 2001.
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before November 6, 2000.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Sheila Carey at (202) 708-6287 or via her internet address Sheila_Carey@ed.gov. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Education.
Notice of computer matching between the U.S. Department of Education and the Administration for Children and Families (ACF) Department of Health and Human Services (HHS) Office of Child Support Enforcement (OCSE).
Pursuant to the Computer Matching and Privacy Protection Act of 1988 and the Office of Management and Budget (OMB) Guidelines on the Conduct of Matching Programs, this document gives notice of a computer matching program between the U.S. Department of Education (ED), and the Administration for Children and Families/Department of Health and Human Services/Office of Child Support Enforcement (OCSE).
The Data Integrity Boards of OCSE and ED will approve a new computer matching agreement between the two agencies, effective as indicated in paragraph six of this notice. In accordance with the Privacy Act of 1974 (5 U.S.C. 552a), as amended by the Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503), the Office of Management and Budget (OMB) Final Guidelines on the Conduct of Matching Programs (see 54 FR 25818, June 19, 1989), and OMB Circular A-130, we provide the following information:
1.
U.S. Department of Education (ED), recipient agency.
Administration for Children and Families/Department of Health and Human Services/Office of Child Support Enforcement (OCSE), source agency.
2.
The purpose of the match is to obtain address information on individuals who owe funds to the Federal Government under defaulted student loans or grant overpayments. ED will use this information to initiate independent collection of these debts under the provisions of the Debt Collection Act of 1982 when voluntary payment is not forthcoming. For individuals whose annual salary exceeds $16,000, these collection efforts will include requests by ED of the employing entity to apply administrative and/or salary offset procedures until such time as the obligation is paid in full.
3.
The legal authority for conducting this match is contained in the Social Security Act (42 U.S.C. 653(j)) as amended (Pub.L. 106-113).
4.
The systems of records maintained by the respective agencies under the Privacy Act of 1974, as amended, 5 U.S.C. 552a, from which records will be disclosed for the purpose of this computer match are as follows:
ED: 18-11-07 Student Financial Assistance Collection Files.
OCSE: 09-90-0074 the National Directory of New Hires (NDNH).
5.
ED administers student financial assistance programs under the Higher Education Act of 1965 (HEA). OCSE maintains a database that consists of three separate components. The first component, the W4 table, contains all newly hired employees as reported from the State Directory of New Hires (SDNH) and directly from federal agencies. Component two, the QW table, contains quarterly wage information on individual employees, as received from federal agencies and states. The final component, the UI table, contains, unemployment insurance information of individuals who have received, or made application for, unemployment benefits, as reported by State Employment Security Agency or other State agencies responsible for the implementation of the Unemployment Insurance Program.
This matching agreement between ED and OCSE will assist ED in locating and collecting funds from delinquent debtors. The identifying elements that the two agencies will match are as follows:
ED: Names and SSNs of delinquent debtors.
OCSE: Names and SSNs of all newly hired employees and individuals who have received, or made application for, unemployment benefits.
OCSE will perform the computer match using all nine digits of the social security number (SSN) of the ED file against the OCSE computer database. OCSE will produce a file containing the name, SSN, current home address, employer and employer's address for each individual identified, based on the match. The file of matches will be returned to ED.
ED is responsible for verifying and determining that the data on the NDNH reply file is consistent with ED's source file and for resolving any discrepancies or inconsistencies on an individual basis. ED will also be responsible for making final determinations as to positive identification, amount of indebtedness and recovery efforts, as a result of the match.
6.
The matching program will become effective 40 days after a copy of the agreement, as approved by the Data Integrity Board of each agency, is sent to Congress and OMB (or later if OMB objects to some or all of the agreement), or October 10, 2000, whichever date is later. The matching program will continue for 18 months after the effective date and may be extended for an additional 12 months thereafter, if the conditions specified in 5 U.S.C. 552a(o)(2)(D) have been met.
7.
If you wish to comment on this matching program or obtain additional information about the program including a copy of the computer matching agreement between ED and OCSE, contact Marian Currie, U.S. Department of Education, 400 Maryland Avenue, SW., room 5614, ROB-3, Washington, DC 20202-5400, telephone: (202) 708-4766; or, as a secondary contact: Adara L. Walton, 400 Maryland Avenue, SW., room 5614, ROB-3, Washington, DC 20202-5420, telephone: (202) 260-1852. If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
During and after the comment period, you may inspect all public comments about this matching program in room 5614, Regional Office Building 3, Seventh and D Streets, SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 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 record for this notice. If you want to schedule an appointment for this type of aid, you may call (202) 205-8113 or (202) 260-9895. If you use a TDD, you may call the Federal Information Relay Service at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternate format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed in the preceding paragraph.
You may view this document, as well as all other Department of Education documents published in the
To use PDF you must have the Adobe Acrobat Reader, which is available free at either of the previous sites. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at (202) 512-1530.
You may also view this document in text or PDF at the following site: http://ifap.ed.gov/csb_html/fedlreg.htm.
The official version of this document is the document published in the
Office of Nuclear Energy, Science and Technology, Department of Energy.
Notice of availability.
The Department of Energy (DOE) has issued a draft Roadmap that it intends to use to guide any future research and development (R&D) activities for the materials associated with its depleted uranium hexafluoride (DUF
The Roadmap characterizes and analyzes paths for the eventual disposition of these materials, identifies the barriers that exist for those paths, and proposes research, development, and other activities in order to eliminate such barriers. The Roadmap also addresses other surplus depleted uranium, primarily in the form of DU trioxide and DU tetrafluoride.
DOE invites all interested parties to review the draft Roadmap and to submit comments. The draft Depleted Uranium Hexafluoride Materials Use Roadmap is available for downloading via the Internet at
Comments on the draft Roadmap will be accepted during a public comment period that ends on October 20, 2000. DOE will consider comments received after this date to the extent practicable.
Written comments, requests for further information, or requests for copies of the document may be submitted over the Internet by sending them to
Mr. Robert R. Price, U.S. Department of Energy, Office of Nuclear Energy, Science and Technology, 19901 Germantown Road, Germantown, MD 20874. Telephone 301/903-9527, Facsimile 301/903-4905.
On July 6, 1999, DOE issued the Final Plan for the Conversion of Depleted Uranium Hexafluoride as required by Public Law 105-204. In that final plan, DOE committed to develop a Depleted Uranium Hexafluoride Materials Use Roadmap in order to establish a corporate plan for the application of DUF
Take notice that on August 25, 2000, ANR Pipeline Company (ANR) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following revised tariff sheet, to be effective September 25, 2000.
ANR states that this filing is made in compliance with the Commission's Order dated July 26, 2000 in the captioned proceeding.
ANR states that copies of the filing have been mailed to all affected customers and state regulatory commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. 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 proceedings. Any person wishing to become a party
In the Commission's order issued on August 23, 2000,
Take notice that the technical conference will be held on Thursday, September 14, 2000, at 10:00 am, in a room to be designated at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
All interested parties and Staff are permitted to attend.
Take notice that on August 3, 2000, ISO New England Inc. filed its quarterly Index of Customers for its Tariff for Transmission Dispatch and Power Administration Services in accordance with the procedure specified in its filing letter in Docket No. ER00-395-000 dated November 1, 1999, and approved by Commission order issued December 30, 1999.
Any person desiring to be heard or to protest such filing 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 and 385.214). All such motions and protests should be filed on or before September 11, 2000. Protests will be considered by the Commission to determine the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the Internet at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222) for assistance).
Take notice that on August 25, 2000, Kern River Gas Transmission Company (Kern River) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the tariff sheets listed in Appendix A of the filing.
Kern River states that the purpose of this filing is: (1) To conform Kern River's tariff to the Commission's revised regulations pursuant to Order Nos. 637, 637-A and 637-B as those Orders apply to (i) the temporary removal of the rate ceiling for short-term capacity release transactions and (ii) modifications to the regulatory right of first refusal; and; (2) to add language setting forth Kern River's policy pertaining to partial capacity turnbacks resulting from a shipper's election to exercise a right of first refusal for a portion of its capacity, to permanently release a portion of its capacity, or to extend the contract term for a portion of its capacity.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. 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 proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance).
Take notice that on August 16, 2000, Mid Louisiana Gas Company filed revised tariff sheets to eliminate tariff provisions that are inconsistent with the Commission's decision in Order Nos. 637 and 637-A to remove the rate ceiling for short term capacity release transactions. As mandated by such orders, the revised tariff sheets are to be effective as of March 26, 2000.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. 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 proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/
Take notice that on August 25, 2000, Midwestern Gas Transmission Company (Midwestern) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Second Revised Sheet No. 110. Midwestern requests an effective date of September 26, 2000.
Midwestern states that Sheet No. 110 is being filed to comply with the Commission's July 26, 2000 “Order Authorizing Merger” in Docket No. EC00-73. El Paso Energy Corporation and The Coastal Corporation, 92 FERC (61,076 (2000) (hereinafter, the July 26th Order). In the July 26th Order, the Commission approved the application of El Paso Energy Corporation and The Coastal Corporation requesting Commission approval of the proposed merger between the two companies. Midwestern further states that Sheet No. 110 effectuates that commitment of the respective companies to file tariff sheets, for ANR Pipeline Company and Midwestern, committing that future pipeline expansion capacity will be offered to all shippers on a non-discriminatory basis.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. 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 proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance).
On July 17, 2000, National Fuel Gas Supply Corporation (National Fuel submitted a filing to comply with Order No. 637. Several parties have protested various aspects of National Fuel's filing.
Take notice that a technical conference to discuss the various issues raised by National Fuel's filing will be held on Tuesday, September 26, 2000, at 10:00 am, in a room to be designated at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, D.C. 20426. Parties protesting aspects of National Fuel's filing should be prepared to discuss alternatives.
All interested parties and Staff are permitted to attend.
Take notice that on August 25, 2000, Northwest Pipeline Corporation (Northwest) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the following tariff sheets, to be effective as indicated:
Northwest states that the purpose of this filing is: (1) To conform Northwest's tariff to the Commission's revised regulations pursuant to Order Nos. 637, 637-A and 637-B as those Orders apply to (i) the temporary removal of the rate ceiling for short-term capacity release transactions and (ii) modifications to the regulatory right of first refusal; and; (2) to add language setting forth Northwest's policy pertaining to partial capacity turnbacks resulting from a shipper's election to exercise a right of first refusal for a portion of its capacity, to permanently release a portion of its capacity, or to extend the contract term for a portion of its capacity.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. 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 proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance).
Take notice that a settlement conference will be held on Thursday, September 7, 2000, at 10 a.m., in a room
All interested parties and Staff are permitted to attend.
Take notice that on August 29, 2000, pursuant to Rule 206 of the Commission's Rules of Practice and Procedure (18 CFR 385.206) and the Procedural Rules Applicable to Oil Pipeline Procedures (18 CFR 343.1(a)), Refinery Holding Company, L.P. (RHC), tendered for filing a complaint in this proceeding. RHC alleges that SFPP, L.P. (SFPP) has violated and continues to violate the Interstate Commerce Act, 49 U.S.C. App § 1
RHC requests that the Commission: (1) Examine SFPP's rates and charges for its jurisdictional interstate East Line service and declare that such rates and charges are unjust and unreasonable; (2) order refunds and reparations to RHC, including appropriate interest thereon, for the applicable refund and reparations periods to the extent the Commission finds that such rates and charges are unlawful; (3) determine just, reasonable, and nondiscriminatory rates for SFPP's jurisdictional interstate East Line service; (4) award RHC reasonable attorneys' fees and costs and reasonable experts' fees and costs; and (5) order such other and further relief as may be appropriate.
RHC states that it has served the complaint on SFPP. Pursuant to Rule 206(f) of the Commission's Rules of Practice and Procedure, answers to this complaint are due on September 18, 2000.
Any person desiring to be heard or to protest such filing 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 and 385.214). All such motions and protests should be filed on or before September 8, 2000. Protests will be considered by the Commission to determine the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the Internet at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222) for assistance).
Take notice that the following filings have been made with the Commission:
Take notice that on August 24, 2000, the New England Power Pool (NEPOOL) Participants Committee tendered for filing notification that the effective date of membership in NEPOOL of Quinnipiaic Energy LLC was August 17, 2000.
Take notice that on August 23, 2000, the Deputy Secretary of the U.S. Department of Energy, by Rate Order No. WAPA-93, did confirm and approve on an interim basis, to be effective on October 1, 2000, the Western Area Power Administration's (Western) Rate Schedule SNF-5 for the Washoe Project, Stampede Division (Stampede).
The rates in Rate Schedule SNF-5 will be in effect pending the Federal Energy Regulatory Commission's (Commission) approval of these rates or of substitute rates on a final basis through September 30, 2005.
Take notice that on August 29, 2000, the California Electricity Oversight Board (California Board), tendered for filing a Complaint alleging that California's wholesale markets as administered by the California Independent System Operator Corporation and the California Power Exchange Corporation are not workably competitive and that wholesale rates are not just and reasonable. The California Board urges the Commission to take such action to ensure the California's wholesale rates are just and reasonable and to maintain bid caps of no more than $250 per MW of ancillary services, $250 per MWh for energy and $100 per MW for replacement reserve capacity until demonstrable evidence exists that California's wholesale market are workably competitive and that wholesale rates are just and reasonable.
Take notice that on August 23, 2000, Reliant Energy Mid-Atlantic Power Holdings, L.L.C. (Reliant Energy Mid-Atlantic) tendered for filing information with respect to a change in facts relative to its status as exempt wholesale generator and a demonstration that such change does not affect such status pursuant to Section 32(a)(1) of the Public Utility Holding Company Act of 1935 as amended (PUHCA), 15 U.S.C. § 79z-5a(a)(1) (1994) and Section 365.8 of the Commission's regulations, 18 CFR 365.8.
Take notice that on August 23, 2000, Reliant Energy New Jersey Holdings, L.L.C. (Reliant Energy New Jersey) tendered for filing information with respect to a change in facts relative to its status as an exempt wholesale generator and a demonstration that such change does not affect such status pursuant to Section 32(a)(1) of the Public Utility Holding Company Act of 1935 as amended (PUHCA), 15 U.S.C. § 79z-5a(a)(1) (1994) and Section 365.8 of the Commission's regulations, 18 CFR 365.8.
Take notice that on August 23, 2000, Reliant Energy Maryland Holdings, L.L.C. (Reliant Energy Maryland) tendered for filing information with respect to a change in facts relative to its status as exempt wholesale generator status and a demonstration that such change does not affect such status pursuant to Section 32(a)(1) of the Public Utility Holding Company Act of 1935 as amended (PUHCA), 15 U.S.C. § 79z-5a(a)(1) (1994) and Section 365.8 of the Commission's regulations, 18 CFR 365.8.
Take notice that on August 24, 2000, the New England Power Pool (NEPOOL), Participants Committee tendered for filing a correction to its filing dated July 31, 2000 in the Docket No. ER00-3339.
The NEPOOL Participants Committee states that copies of these materials were sent to the New England state governors and regulatory commissions and the Participants in NEPOOL.
Take notice that on August 24, 2000, Western Resources, Inc. (WR), tendered for filing an amendment to its July 19, 2000 filing in this proceeding. The amendment includes (i) an Order No. 614 compliant version of the Letter Agreement between WR, Missouri Joint Municipal Electric Utility Commission (MJMEUC), and Associated Electric Cooperative, Inc. (AECI), (ii) an Order No. 614 compliant version of the Control Area Services Agreement between WR and MJMEUC; and (iii) a statement of intent to refund the time value of money pursuant to § 35.19(a) of the Federal Energy Regulatory Commission's Regulations.
Copies of the filing were served upon MJMEUC.
Take notice that on August 24, 2000, Entergy Services, Inc., tendered for filing replacement clean copies of its June 19, 2000, compliance filing in Docket Nos. ER95-112 and ER96-586 proceedings.
Take notice that on August 23, 2000, Columbia Falls Aluminum Company, PPL Montana, LLC, Alcoa, Inc., and Kaiser Aluminum & Chemical Corporation, tendered for filing an amendment to its July 19, 2000 filing in Docket No. ER00-3210.
Take notice that on August 24, 2000, the California Independent System Operator Corporation (ISO), tendered for filing a complete Participating Generator Agreement (PGA) between the ISO and San Joaquin Cogen Limited (Service Agreement No. 283). The filing is meant to correct a filing made on August 10, 2000, in which the ISO submitted a revised Schedule 1, Section 1 to the PGA but failed to include the PGA itself in the filing. No changes have been made to the PGA originally filed on January 12, 2000, apart from the revision to Schedule 1, Section 1.
The ISO has requested waiver of the 60-day prior notice requirement to allow the revised Schedule 1, Section 1 to become effective on August 24, 2000.
The ISO states that copies of this filing have been served upon all parties in the above-referenced docket.
Take notice that on August 23, 2000, PJM Interconnection, L.L.C. (PJM), tendered for filing signature pages to the Reliability Assurance Agreement among Load Serving Entities in the PJM Control Area (RAA) for HIS Power & Water, L.L.C. (HIS Power), It's Electric & Gas, L.L.C., (It's Electric & Gas), and The New Power Company (New Power), and an amended Schedule 17 listing the parties to the RAA.
PJM states that it served a copy of its filing on all parties to the RAA, including HIS Power, It's Electric & Gas, New Power, and each of the state electric utility regulatory commissions within the PJM Control Area.
Take notice that on August 24, 2000, the New England Power Pool (NEPOOL), Participants Committee filed for acceptance materials to permit NEPOOL to expand its membership to include Edison Mission Marketing & Trading, Inc. (EMMT) and to terminate the membership of Citizens Power Sales, LLC (Citizens).
NEPOOL requests an effective date for the commencement of EMMT's participation in and Citizens' termination from NEPOOL as of the date of the closing of the merger of Citizens with and into EMMT.
The Participants Committee states that copies of these materials were sent to the New England state governors and regulatory commissions and the Participants in NEPOOL.
Take notice that on August 24, 2000, American Electric Power Service
Take notice that on August 24, 2000, Public Service Company of New Mexico (PNM), tendered for filing an executed service agreement, for electric power and energy sales at negotiated rates under the terms of PNM's Power and Energy Sales Tariff, with PacifiCorp (dated March 19, 1999). PNM's filing is available for public inspection at its offices in Albuquerque, New Mexico.
Copies of the filing have been sent to PacifiCorp and to the New Mexico Public Regulation Commission.
Take notice that on August 24, 2000, Commonwealth Edison Company (ComEd), tendered for filing an Interconnection Agreement with LSP-Nelson Energy, LLC.
ComEd requests an effective date of August 25, 2000 and accordingly seeks waiver of the Commission's notice requirements.
Copies of the filing were served on LSP-Nelson and the Illinois Commerce Commission.
Take notice that on August 24, 2000, the New England Power Pool (NEPOOL) Participants Committee tendered for acceptance materials to permit NEPOOL to expand its membership to include CMS Marketing Services and Trading CMS).
The Participants Committee requests an effective date of September 1, 2000 for commencement of participation in NEPOOL by CMS.
The Participants Committee states that copies of these materials were sent to the New England state governors and regulatory commissions and the Participants in NEPOOL.
Take notice that on August 24, 2000, Carolina Power & Light Company (CP&L), tendered for filing Service Agreements for Short-Term Firm Point-to-Point Transmission Service with Florida Power Corporation and Public Service Electric and Gas Company. Service to these Eligible Customers will be in accordance with the terms and conditions of Carolina Power & Light Company's Open Access Transmission Tariff.
CP&L is requesting an effective date of August 3, 2000 for the Agreement with Florida Power and an effective date of August 7, 2000 for the Agreement with Public Service.
Copies of the filing were served upon the North Carolina Utilities Commission and the South Carolina Public Service Commission.
Take notice that on August 24, 2000, LSP Energy Limited Partnership (LSP Energy), tendered for filing under Section 205 of the Federal Power Act two short-term umbrella service agreements between LSP Energy and Virginia Electric and Power Company, and one short-term umbrella service agreement between LSP Energy and Aquila Energy Marketing Corporation. The umbrella service agreements provide for sales of test energy under LSP Energy's market-based rate schedule.
LSP Energy requests an effective date for the umbrella service agreements of July 26, 2000.
Take notice that on August 24, 2000, PJM Interconnection, L.L.C. (PJM), tendered for filing changes to Attachment K (PJM Interchange Energy Market) of the PJM Open Access Transmission Tariff (PJM Tariff) and to Schedule 1 of the Amended and Restated Operating Agreement of PJM Interconnection, L.L.C. (Operating Agreement), to clarify that generation facilities located in the PJM control area may obtain “Station Power,”
Copies of this filing were served upon all members of PJM and each state electric utility regulatory commission in the PJM control area.
Take notice that on August 24, 2000, FirstEnergy System tendered a Service Agreement to provide Non-Firm Point-to-Point Transmission Service for Alliance Energy Services Partnership, the Transmission Customer. Services are being provided under the FirstEnergy System Open Access Transmission Tariff submitted for filing by the Federal Energy Regulatory Commission in Docket No. ER97-412-000.
The proposed effective date under this Service Agreement is August 15, 2000 for the above mentioned Service Agreement in this filing.
Take notice that on August 24, 2000, LSP Energy Limited Partnership (LSP Energy), tendered for filing under Section 205 of the Federal Power Act three short-term umbrella service agreements between LSP Energy and Virginia Electric and Power Company, and one short-term umbrella service agreement between LSP Energy and Aquila Energy Marketing Corporation. The umbrella service agreements provide for sales of test energy under LSP Energy's market-based rate schedule.
LSP Energy requests an effective date for the umbrella service agreements coincident with the commencement of service thereunder.
Take notice that on August 24, 2000, FirstEnergy System tendered for filing Service Agreements to provide Firm Point-to-Point Transmission Service for Alliance Energy Services Partnership, the Transmission Customer. Services are being provided under the FirstEnergy System Open Access Transmission Tariff submitted for filing by the Federal Energy Regulatory Commission in Docket No. ER97-412-000.
The proposed effective date under this Service Agreement is August 15,
Take notice that on August 24, 2000, Indianapolis Power & Light Company (IPL), tendered for filing an Interconnection, Operation and Maintenance Agreement between IPL and the Board of Directors for Utilities for the Department of Public Utilities of the City of Indianapolis, as trustee of a public charitable trust, d/b/a Citizens Gas & Coke Utility (Citizens), in the above-captioned docket.
IPL requests an effective date as of the closing of the sale to Citizens of certain steam production and distribution facilities, which date is not presently known but which would not occur before sixty (60) days after the date of filing.
Copies of this filing have been served upon Citizens and the Indiana Utility Regulatory Commission.
Take notice that on August 24, 2000, the New England Power Pool (NEPOOL), Participants Committee submitted several revised Market Rules and Procedures (the Market Rules), and revisions and deletions of several relevant appendices to the Market Rules, which collectively remove from the Market Rules all mention of the Installed Capability auction market in accordance with NEPOOL's proposed elimination of that Auction market as set forth in the Fifty-Eighth Agreement Amending New England Power Pool Agreement filed with the Commission on July 28, 2000 in Docket Nos. EL00-62-000,
The NEPOOL Participants Committee states that copies of these materials were sent to all Participants in NEPOOL, the New England state governors and regulatory commissions.
Take notice that on August 24, 2000, Western Resources, Inc. (Western) filed an application under section 204 of the Federal Power Act seeking authorization to issue no more than 6,000,000 shares of common stock pursuant to Western's Direct Stock Purchase Plan.
Western also requests a waiver of the Commission's competitive bidding and negotiated placement requirements of 18 CFR 34.2 and a waiver of the reporting requirements under 18 CFR 34.10 with regard to issuances of common stock pursuant to the Direct Stock Purchase Plan.
Take notice that on August 24, 2000, American Electric Power Service Corporation tendered for filing, on behalf of the operating companies of the American Electric Power System, proposed amendments to the Open Access Transmission Tariff accepted for filing by the Commission in Docket No. ER98-2786-000.
AEP requests effective dates of April 13, 1999, June 15, 2000, October 31, 2000 and January 1, 2001 for such amendments.
Copies of AEP's filing have been served upon AEP's transmission customers and the public service commissions of Arkansas, Indiana, Kentucky, Louisiana, Michigan, Ohio, Tennessee, Texas, Virginia and West Virginia and the Oklahoma Corporation Commission.
E. Any person desiring to be heard or to protest such filing 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 and 385.214). All such motions or protests should be filed on or before the comment date. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. Copies of these filings are on file with the Commission and are available for public inspection. This filing may also be viewed on the Internet at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance).
Take notice the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary; Federal Energy Regulatory Commission; 888 First Street, NE; Washington, DC 20426.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
m.
Filing and Service of Responsive Documents—The application is ready for environmental analysis at this time, and the Commission is requesting comments, reply comments, recommendations, terms and conditions, and prescriptions.
The Commission directs, pursuant to Section 4.34(b) of the Regulations (see Order No. 533 issued May 8, 1991, 56 FR 23108, May 20, 1991) that all comments, recommendations, terms and conditions and prescriptions concerning the application be filed with the Commission within 60 days from the issuance date of this notice. All reply comments must be filed with the Commission within 105 days from the date of this notice.
Anyone may obtain an extension of time for these deadlines from the Commission only upon a showing of good cause or extraordinary circumstances in accordance with 18 CFR 385.2008.
All filings must (1) bear in all capital letters the title “COMMENTS”, “REPLY COMMENTS”, “RECOMMENDATIONS,”, “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Any of these documents must be filed by providing the original and the number of copies required by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426. An additional copy must be sent to Director, Division of Environmental Engineering Review, Federal Energy Regulatory Commission, at the above address. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b), and 385.2010.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, D.C. 20426.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
The project would have an annual generation of 33 GWh that would be sold to a local utility.
1. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street, NE, Room 2A, Washington, D.C. 20426, or by calling (202) 208-1371. The application may be viewed on http://www.ferc.fed.us/online/rims.htm (call (202) 208-2222 for assistance). A copy is also available for inspection and reproduction at the address in item h above.
Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36.
Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a
Notice of intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance. Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
The project would have an annual generation of 15 GWh that would be sold to a local utility.
l. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street, NE, Room 2A, Washington, DC 20426, or by calling (202) 208-1371. The application may be viewed on http://www.ferc.fed.us/online/rims.htm (call (202) 208-2222 for assistance). A copy is also available for inspection and reproduction at the address in item h above.
Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36.
Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely
Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
The project would have an annual generation of 29.5 GWh that would be sold to a local utility.
l. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street, NE, Room 2A, Washington, DC 20426, or by calling (202) 208-1371. The application may be viewed on http://www.ferc.fed.us/online/rims.htm (call (202) 208-2222 for assistance). A copy is also available for inspection and reproduction at the address in item h above.
Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36.
Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person
Notice of intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
Proposed Scope of Studies Under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work (proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
Comments, Protests, or Motions To Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPLETING APPLICATION”, “PROTEST”, “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
The project would have an annual generation of 41.2 GWh that would be sold to a local utility.
l. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street, NE, Room 2A, Washington, D.C. 20426, or by calling (202) 208-1371. The application may be viewed on http://www.ferc.fed.us/online/rims.htm (call (202) 208-2222 for assistance). A copy is also available for inspection and reproduction at the address in item h above.
Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36.
Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a
Notice of intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
Applicant estimates that the average annual generation would be 117 GWh and project energy would be sold to a local utility. There is a pending legislation, H.R. 4494, that would reinstate the license for this project (P-7307). If the legislation is enacted, this permit would have no value since it does not convey a property right.
m. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street, NE., Washington, DC 20426, or by calling (202) 208-1371. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call (202) 208-2222 for assistance). A copy is also available for inspection and reproduction at the address in item h above.
Preliminary Permit—Public notice of the filing of the initial preliminary permit application, which has already been given, established the due date for filing competing preliminary permit applications or notices of intent. Any competing preliminary permit or development application or notice of intent to file a competing preliminary permit or development application must be filed in response to and in compliance with the public notice of the initial preliminary permit application. No competing applications or notices of intent to file competing applications may be filed in response to this notice. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work
Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
Applicant estimates that the average annual generation would be 122 GWh and project energy would be sold to a local utility. There is a pending legislation, S. 2499, that would reinstate the license for this project (P-7041). If the legislation is enacted, this permit would have no value since it does not convey a property right.
m. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street, NE, Washington, D.C. 20426, or by calling (202) 208-1371. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call (202) 208-2222 for assistance). A copy is also available for inspection and reproduction at the address in item h above.
Preliminary Permit—Public notice of the filing of the initial preliminary permit application, which has already been given, established the due date for filing competing preliminary permit applications or notices of intent. Any competing preliminary permit or development application or notice of intent to file a competing preliminary permit or development application must be filed in response to and in compliance with the public notice of the initial preliminary permit application. No competing applications or notices of intent to file competing applications may be filed in response to this notice. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
The project would have an annual generation of 1 GWh that would be sold to a local utility.
l. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street, NE, Room 2A Washington, D.C. 20426, or by calling (202) 208-1371. The application may be viewed on http://www.ferc.fed.us/online/rims.htm (call (202) 208-2222 for assistance). A copy is also available for inspection and reproduction at the address in item h above.
Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36.
Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
Notice of intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street, Room 2A, NE, Washington, D.C. 20426, or by calling (202) 208-1371. The application may be viewed on http://www.ferc.fed.us/online/rims.htm (call (202) 208-2222 for assistance). A copy is also available for inspection and reproduction at the address in item h above.
Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36.
Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
Notice of intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application must be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies. The Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional
Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
The project would have an annual generation of 450 MWh that would be sold to a local utility.
l. A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street, NW., Room 2A, Washington, DC 20426, or by calling (202) 208-1371. The application may be viewed on http://www.ferc.fed.us/online/rims.htm. (202) 208-2222 for assistance). A copy is also available for inspection and reproduction at the address in item h above.
Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30(b) and 4.36.
Preliminary Permit—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30(b) and 4.36.
Notice of intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requiremeents of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS,” “NOTICE OF INTENT TO FILE COMPETING APPLICATION”, “COMPETING APPLICATION”, “PROTEST”, “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An additional copy must be sent to Director, Division of Hydropower Administration and Compliance, Federal Energy Regulatory Commission, at the above-mentioned address. A copy of any notice of intent, competing application or motion to
Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application and draft environmental assessment has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed wit: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
Please include the project numbers (935-037, 2071-015, and 2111-011 on any comments or motions filed.
k.
PacifiCorp provided a draft environmental assessment of the proposed amendment application with its filing. Commission staff is adopting the draft environmental assessment as its own. Any comments received on this draft environmental assessment will be addressed by Commission staff, and incorporated into the final environmental assessment of the proposed amendment application.
l.
m. Individuals desiring to be included on the Commissions mailing list should so indicate by writing to the Secretary of the Commission.
Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 211, 214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commissions's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “RECOMMENDATIONS FOR TERMS AND CONDITIONS”, “PROTEST”, OR “MOTION TO INTERVENE”, as applicable, and the Project Number(s) of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Agency Comments—Federal, state and local agencies are invited to file comments on the described application and draft environmental assessment. A copy of the application and draft environmental assessment may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the following hydroelectric application and draft environmental assessment has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
Please include the project number (2213-002) on any comments or motions filed.
k.
Cowlitz PUD No. 1 provided draft environmental assessment of the proposed amendment application with its filing. Commission staff is adopting the draft environmental assessment as its own. Any comments received on this draft environmental assessment of the proposed amendment application.
l.
m. Individuals desiring to be included on the Commissions mailing list should so indicate by writing to the Secretary of the Commission.
Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFS 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “RECOMMENDATIONS FOR TERMS AND CONDITIONS”, “PROTEST”, OR “MOTION TO INTERVENE”, as applicable, and the Project Number(s) of the particular application to which the filing refers. Any of the above-named documents must filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, N.E. Washington, D.C. 20426. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Agency Comments—Federal, state and local agencies are invited to file comments on the described application and draft environmental assessment. A copy of the application and draft environmental assessment may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before October 10, 2000.
Sandy Farmer at EPA by phone on (202) 260-2740, by e-mail: “farmer.sandy@ epa.gov,” by mail as indicated below. You may access the ICR at http://www.epa.gov/icr/icr.htm and refer to EPA ICR No. 1715.03.
Send comments, referencing the proper ICR numbers, to the following addresses: Sandy Farmer, U.S. Environmental Protection Agency, Collection Strategies Division (Mail Code: 2822), 1200 Pennsylvania Avenue, NW., Washington, DC 20460; and to: Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street, N.W., Washington, DC 20503.
Responses to the collection of information are mandatory (see 40 CFR part 745). Respondents may claim all or part of a document 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. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15.
The ICR provides a detailed explanation of the burden and cost estimates for this ICR, which are only briefly summarized here:
According to the procedures prescribed in 5 CFR 1320.12, EPA has submitted this ICR to OMB for review and approval. Any comments related to the renewal of this ICR should be submitted within 30 days of this notice, as described above.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before October 10, 2000.
Sandy Farmer at EPA by phone on (202) 260-2740, by e-mail: “farmer.sandy@epamail.epa.gov,” or by mail at the address indicated below. You may also access the ICR at http://www.epa.gov/icr/icr.htm. Please refer to EPA ICR No. 1710.03 or OMB Control No. 2070-0151.
Send comments, referencing the proper ICR number, to the following addresses: Ms. Sandy Farmer, U.S. Environmental Protection Agency, Collection Strategies Division (2822), 1200 Pennsylvania Ave, NW., Washington, DC 20460; and to: Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503.
1. Sellers of pre-1978 residential housing. Sellers of pre-1978 housing must attach certain notification and disclosure language to their sales/leasing contracts. The attachment lists the information disclosed and acknowledges compliance by the seller, purchaser and any agents involved in the transaction.
2. Lessors of pre-1978 residential housing. Lessors of pre-1978 housing
3. Agents acting on behalf of sellers or lessors. Section 1018 of the Residential Lead-Based Paint Hazard Reduction Act of 1992 specifically directs EPA and HUD to require agents acting on behalf of sellers or lessors to ensure compliance with the disclosure regulations.
An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information that is subject to approval under the Paperwork Reduction Act, unless it displays a currently valid OMB control number. The OMB control numbers for EPA's information collections appear as part of the collection instruments (
According to the procedures prescribed in 5 CFR 1320.12, EPA has submitted this ICR to OMB for review and approval. Any comments related to the renewal of this ICR should be submitted within 30 days of this notice, as described above.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before October 10, 2000.
Sandy Farmer at EPA by phone on (202) 260-2740, by e-mail: “farmer.sandy@epamail.epa.gov,” or by mail at the address indicated below. You may also access the ICR at http://www.epa.gov/icr/icr.htm. Please refer to EPA ICR No. 1139.06 or OMB Control No. 2070-0033.
Send comments, referencing the proper ICR number, to the following addresses: Ms. Sandy Farmer, U.S. Environmental Protection Agency, Collection Strategies Division (2822), 1200 Pennsylvania Ave, NW., Washington, DC 20460; and to: Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503.
The Agency may obtain the needed test data (1) by issuing a test rule through notice and comment rulemaking, (2) through negotiation with industry and issuing an Enforceable Consent Agreement (ECA), or (3) through commitments from industry as Voluntary Testing Agreements (VTAs). The testing specified in a rule or ECA issued under TSCA section 4, or any testing identified
Responses to the collection of information specified in a rule issued under TSCA section 4 are mandatory (see 40 CFR part 790), while response to a consent order issued under TSCA section 4 is only mandatory for the participants in the ECA. Participating in a VTA is voluntary. The export notification provisions apply to any exporter of a chemical subject to a rule or consent order issued under TSCA section 4, regardless of their participation in the ECA or any related testing consortia.
Respondents may claim all or part of a document 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.
An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information that is subject to approval under the Paperwork Reduction Act, unless it displays a currently valid OMB control number. The OMB control numbers for EPA's information collections appear as part of the collection instruments (
The ICR provides a detailed explanation of the burden and cost estimates for this ICR, which are only briefly summarized here:
According to the procedures prescribed in 5 CFR 1320.12, EPA has submitted this ICR to OMB for review and approval. Any comments related to the renewal of this ICR should be submitted within 30 days of this notice, as described above.
The U.S. Environmental Protection Agency (EPA) is issuing a request for statement of qualifications for organizations interested in assisting the Chesapeake Bay Program in its effort to provide the administrative, technical and scientific support for the Bay Program partnership. Applicants must be a local, state, interstate agencies, academic institution, or other nonprofit organizations. Note, this is a request for qualifications for the benefit of the Chesapeake Bay Program partnership and not for direct benefit to EPA. funding will be provided to an organization under the authority of the Clean Water Act, section 117.
The RFQ is available at the following web-site:
Environmental Protection Agency.
Notice of availability of the Project XL Draft Final Project Agreement: Lead-Safe Boston.
EPA is requesting comments on a draft Project XL Final Project Agreement (FPA) for Lead-Safe Boston (LSB). LSB is a program operated by the City of Boston's Department of Neighborhood Development that collaborates with state agencies and private organizations to prevent lead poisoning of young children by working to control lead hazards in Boston's highest risk areas. The FPA is a voluntary agreement developed collaboratively by LSB, Massachusetts Department of Environmental Protection (MA DEP), the United States Department of Housing and Urban Development (HUD) and the United States Environmental Protection Agency (US EPA). Project XL, announced in the
In this XL project, LSB seeks to utilize provisions in the RCRA Household Waste Exclusion (HWE) Rule at 40 CFR 261.4(b)(1) to allow lead-based paint
These additional residential abatements will be pursued according to HUD procedures. The HWE provisions utilized by LSB in this project will also be made available on a nationwide basis to any individual or contractor performing lead abatement activities in residential housing units—ultimately sparing thousands of children from lead poisoning.
The period for submission of comments ends on September 21, 2000.
All comments on the draft Final Project Agreement should be sent to: Michael Hill One Congress Street Suite 1100 (M/C CMA), Boston, MA 02114-2023. Comments may be faxed to Mr. Hill at 617-918-1505.
To obtain a copy of the draft Final Project Agreement, contact Michael Hill, US EPA, Region I, One Congress Street, Suite 1100 (M/C CMA), Boston, MA 02114-2023). The FPA and related documents are also available via the Internet at the following location:
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, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before November 6, 2000. 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 to Les Smith, Federal Communications Commissions, 445 12th Street, S.W., Room 1-A804, Washington, DC 20554 or via the Internet to lesmith@fcc.gov.
For additional information or copies of the information collections contact Les Smith at (202) 418-0217 or via the Internet at lesmith@fcc.gov.
Applicants are also subject to the third party disclosure requirement of Section 73.3580. This section requires local public notice in a newspaper of general circulation of the filing of all applications for new or major changes in facilities. This notice must be completed within 30 days of the tendering of the application. This notice must be published at least twice a week for two consecutive weeks in a three-week period. A copy of this notice must be locally maintained along with the application.
The data is used by FCC staff to determine if the applicant is qualified, meets basic statutory and treaty requirements and will not cause interference to other authorized broadcast services.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before October 10, 2000. 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 to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554 or via the Internet to jboley@fcc.gov.
For additional information or copies of the information collection(s), contact Judy Boley at 202-418-0214 or via the Internet at jboley@fcc.gov.
This collection also includes a third party disclosure requirement of Section 73.3580. This section requires local public notice in a newspaper of general circulation of the filing of all applications for assignment of license/permit. This notice must be completed within 30 days of the tendering of the application. A copy of this notice must be placed in the public inspection file along with the application.
The FCC Form 345 has been revised to facilitate electronic filing by replacing narrative exhibits with the use of certifications. The Commission also deleted and narrowed overly burdensome questions. The FCC Form 345 will be supplemented with detailed instructions to explain processing standards and rule interpretations to help ensure that applicants certify accurately. The form was also revised to include a reporting requirement concerning the transfer or assignment of authorizations obtained through the competitive bidding process. As a result, the Commission has added instructions and a question about competitive bidding.
Federal Election Commission.
Tuesday, September 12, 2000, 10 a.m.
999 E Street, NW., Washington, D.C.
This meeting will be closed to the public.
Compliance matters pursuant to 2 U.S.C. § 437g.
Audits conducted pursuant to 2 U.S.C. § 437g, § 438(b), and Title 26, U.S.C.
Matters concerning participation in civil actions or proceedings or arbitration.
Internal personnel rules and procedures or matters affecting a particular employee.
Thursday, September 14, 2000, 10 a.m.
999 E Street, NW., Washington, DC (Ninth Floor).
This meeting will be open to the public.
Correction and Approval of Minutes.
Dole for President—Statement of Reasons (LRA#467).
Dole/Kemp '96, Inc.—Statement of Reasons (LRA#506).
Buchanan for President, Inc.—Statements of Reasons (LRA#512).
Advisory Opinion 2000-20: Committee for Quality Cancer Care by counsel, Brett G. Kappel.
Advisory Opinion 2000-22: Air Transportation Association of America, American Land Title Association, Council of Insurance Agents and Brokers, Independent Insurance Agents of America, and the Society of Independent Gasoline Marketers of America by counsel, Scott A. Sinder and Stephen Gold.
Revisions to Reporting Forms and Instructions.
Explanation and Justification for Revisions to FEC Reporting Forms.
Administrative Matters.
Mr. Ron Harris, Press Officer, Telephone: (202) 694-1220.
Federal Financial Institutions Examination Council.
Proposed Policy Statement; request for comment.
The Federal Financial Institutions Examination Council (FFIEC)
Comments must be received by November 6, 2000.
Comments should be directed to Keith J. Todd, Executive Secretary, Federal Financial Institutions Examination Council, 2000 K Street, N.W., Suite 310, Washington, DC 20006, fax number: (202) 872-7501. Comments will be available for public inspection during regular business hours at the above address. Appointments to inspect comments are encouraged and can be arranged by calling the FFIEC at (202) 872-7500.
On March 10, 1999, the Federal Deposit Insurance Corporation, the Federal Reserve Board, the Office of the Comptroller of the Currency, the Office of Thrift Supervision, and the Securities and Exchange Commission (together, the Agencies) issued a joint letter to financial institutions on the allowance for loan and lease losses (the Joint Letter). In the Joint Letter, the Agencies agreed to establish a Joint Working Group to study ALLL issues and to assist financial institutions by providing them with improved guidance on this topic. The Agencies agreed that the Joint Working Group would develop and issue parallel guidance for two key areas regarding the ALLL:
• Appropriate methodologies and supporting documentation, and
• Enhanced disclosures.
This proposed Policy Statement represents the banking agencies'
This Policy Statement clarifies the banking agencies' expectations regarding methodologies and documentation support for the ALLL from a generally accepted accounting principles (GAAP) perspective. For financial reporting purposes, including regulatory reporting, the provision for loan and lease losses and the ALLL must be determined in accordance with GAAP and supervisory guidance. GAAP requires that an institution maintain written documentation to support the amounts of the ALLL and the provision for loan and lease losses reported in the financial statements.
The proposal is not intended to change existing accounting guidance in, or modify the documentation requirements of, GAAP or guidance provided in the relevant joint interagency statements issued by the Agencies. It is intended to supplement, not replace, the guidance the banking agencies provided in their Interagency Policy Statement on the Allowance for Loan and Lease Losses, which was issued in December 1993. It is also intended to supplement guidance the banking agencies provided in their interagency guidelines establishing standards for safety and soundness that were issued in 1995 and 1996 pursuant to Section 39 of the Federal Deposit Insurance Act (FDI Act).
The guidance in this Policy Statement recognizes that institutions should adopt methodologies and documentation practices that are appropriate for their size and complexity. For smaller institutions with fewer and less complex loan products, the amount of supporting documentation for the ALLL may be less exhaustive than for larger institutions.
Recognizing that a primary mission of the banking agencies is to support a safe and sound banking system, examiners will continue to evaluate the overall adequacy of the ALLL, including the adequacy of supporting documentation, to ensure that it is appropriate. While the proposed Policy Statement generally does not provide guidance to examiners in conducting safety and soundness examinations, examiners may criticize institutions that fail to document and maintain an adequate ALLL in accordance with this Policy Statement and other banking agency guidance. In such cases, institution management may be cited for engaging in unsafe and unsound banking practices and may be subject to further supervisory action.
The proposed Policy Statement clarifies that the board of directors of each institution is responsible for ensuring that controls are in place to determine the appropriate level of the ALLL. It also emphasizes the banking agencies' long-standing position that institutions should maintain and support the ALLL with documentation that is consistent with their stated policies and procedures, GAAP, and applicable supervisory guidance.
The proposed Policy Statement provides guidance on significant aspects of ALLL methodologies and documentation practices. Specifically, the proposal provides guidance on maintaining and documenting policies and procedures that are appropriately tailored to the size and complexity of the institution and its loan portfolio. The proposed Policy Statement notes that it is critical for an institution's ALLL methodology to incorporate management's current judgments about the credit quality of the loan portfolio. The methodology must be a thorough, disciplined, and consistently applied process that is reviewed and approved by the institution's board of directors.
The proposal also discusses the methodology and documentation needed to support ALLL estimates prepared in accordance with GAAP, which requires loss estimates based upon reviews of individual loans and groups of loans. After determining the allowance on individually reviewed loans and groups of loans, the proposal states that management should consolidate these loss estimates and summarize the amount to be reported in the financial statements for the ALLL. To verify that the ALLL methodology is effective and conforms to GAAP and supervisory guidance, a review of the methodology and its application should be completed by external or internal auditors or some other party unrelated to the ALLL process, as appropriate for the size and complexity of the institution.
The proposal includes illustrations of implementation practices that institutions may find useful for enhancing their own ALLL practices, an appendix that provides examples of certain key aspects of ALLL guidance, a summary of applicable GAAP guidance, and a bibliographical list of relevant GAAP guidance, joint interagency statements, and other literature on ALLL issues.
Comment is requested on all aspects of the proposed Policy Statement.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the banking agencies have reviewed the proposed Policy Statement and determined that it does not add any collections of information pursuant to the Act.
The text of the proposed Policy Statement follows:
Boards of directors of banks and savings institutions are responsible for ensuring that their institutions have controls in place to consistently determine the allowance for loan and lease losses (ALLL) in accordance with the institutions' stated policies and procedures, generally accepted accounting principles (GAAP), and ALLL supervisory guidance.
The determination of the amounts of the ALLL and provisions for loan and lease losses should be based on management's current judgments about the credit quality of the loan portfolio, and should consider all known relevant internal and external factors that affect loan collectibility as of the reporting date. The ALLL methodology, the associated policies and procedures, and the amounts to be reported each period for the provision for loan and lease losses and ALLL should be reviewed and approved by the board of directors. To ensure the methodology remains appropriate for the institution, the board of directors should have the methodology periodically validated and, if appropriate, revised. The board of directors' audit committee
The banking agencies'
For financial reporting purposes, including regulatory reporting, the provision for loan and lease losses and the ALLL must be determined in accordance with GAAP. GAAP requires that allowances be well documented, with clear explanations of the supporting analyses and rationale. This Policy Statement describes but does not increase the documentation requirements already existing within GAAP. Failure to maintain, analyze, or support an adequate ALLL in accordance with GAAP and supervisory guidance is generally an unsafe and unsound banking practice.
This guidance applies equally to all institutions, regardless of the size. Because of their less complex lending activities and products, smaller institutions may find it more efficient to combine a number of procedures (
Appropriate written supporting documentation facilitates review of the ALLL process and reported amounts, builds discipline into the ALLL determination process, and improves the process for estimating loan and lease losses by helping to ensure that all relevant factors are appropriately considered in the ALLL analysis. An institution should document the relationship between the findings of its detailed review of the loan portfolio and the amount of the ALLL and the provision for loan and lease losses reported in each period.
At a minimum, institutions should maintain written supporting documentation for the following decisions, strategies, and processes:
(1) Policies and procedures:
(a) Over the systems and controls that maintain an appropriate ALLL and
(b) Over the ALLL methodology,
(2) Loan grading system or process,
(3) Summary or “roll-up” of the ALLL balance,
(4) Validation of the ALLL methodology, and
(5) Justification for periodic adjustments to the ALLL process.
The following sections of this Policy Statement provide guidance on significant aspects of ALLL methodologies and documentation practices. Specifically, the paper provides guidance on:
(1) Policies and Procedures,
(2) Methodology,
(3) ALLL Under Financial Accounting Standards Board (FASB) Statement of Financial Accounting Standards No. 114, Accounting by Creditors for Impairment of a Loan (FAS 114),
(4) ALLL Under FASB Statement of Financial Accounting Standards No. 5, Accounting for Contingencies (FAS 5),
(5) Consolidating the Loss Estimates, and
(6) Validating the ALLL Methodology.
Financial institutions utilize a wide range of policies, procedures, and control systems in their ALLL process. Sound policies should be appropriately tailored to the size and complexity of the institution and its loan portfolio.
An institution's written policies and procedures for the systems and controls that maintain an appropriate ALLL should address but not be limited to:
(1) The roles and responsibilities of the institution's departments and personnel (including the lending function, credit review, financial reporting, internal audit, senior management, audit committee, board of directors, and others, as applicable) who determine the ALLL to be reported in the financial statements;
(2) The institution's accounting policies for loans and loan losses, including the policies for charge-offs and recoveries and for estimating the fair value of collateral, where applicable;
(3) The description of the institution's systematic methodology, which should be consistent with the institution's accounting policies for determining its ALLL;
(4) The system of internal controls used to ensure that the ALLL process is maintained in accordance with GAAP and supervisory guidance.
An internal control system for the ALLL estimation process should:
(1) Include measures to ensure the reliability and integrity of information and compliance with laws, regulations, and internal policies and procedures;
(2) Ensure that the institution's financial statements (including regulatory reports) are prepared in accordance with GAAP and ALLL supervisory guidance;
(3) Include a well-defined loan review process containing:
(a) An effective loan grading system that is consistently applied, identifies differing risk characteristics and loan quality problems accurately and in a timely manner, and prompts appropriate administrative actions;
(b) Sufficient internal controls to ensure that all relevant loan review information is
(c) Clear formal communication and coordination between an institution's credit administration function, financial reporting group, management, board of directors, and others who are involved in the ALLL determination process (
An ALLL methodology is a system that an institution designs and implements to reasonably estimate loan and lease losses as of the financial statement date. It is critical that ALLL methodologies incorporate management's current judgments about the credit quality of the loan portfolio through a disciplined and consistently applied process.
An institution's ALLL methodology is influenced by institution-specific factors, such as an institution's size, organizational structure, business environment and strategy, management style, loan portfolio characteristics, loan administration procedures, and management information systems. However, there are certain common elements an institution should incorporate in its ALLL methodology. A summary of common elements is provided in Appendix B.
An institution's formal policies and procedures should describe the primary elements of the institution's ALLL methodology. Such elements would include portfolio segmentation, impairment measurement, and loss rate determination. Specifically, written policies and procedures should describe the methodology:
(1) For segmenting the portfolio:
(a) How the segmentation process is performed (
(b) When a loan grading system is used to segment the portfolio:
(i) The definitions of each loan grade,
(ii) A reconciliation of the internal loan grades to supervisory loan grades, and
(iii) The delineation of responsibilities for the loan grading system.
(2) For determining and measuring impairment under FAS 114:
(a) The methods used to identify loans to be analyzed individually;
(b) For individually reviewed loans that are impaired, how the amount of any impairment is determined and measured, including:
(i) Procedures describing the impairment measurement techniques available and
(ii) Steps performed to determine which technique is most appropriate in a given situation.
(c) The methods used to determine whether and how loans individually evaluated under FAS 114, but not considered to be individually impaired, should be grouped with other loans that share common characteristics for impairment evaluation under FAS 5.
(3) For determining and measuring impairment by applying loss rates to loan balances under FAS 5:
(a) How loans with similar characteristics are grouped to be evaluated for loan collectibility (such as loan type, past-due status, and risk);
(b) How historical loss rates are determined and what factors are considered when establishing appropriate time frames over which to evaluate loss experience; and
(c) Descriptions of qualitative factors (
The supporting documents for the ALLL may be integrated in an institution's credit files, loan review reports or worksheets, board of directors' and committee meeting minutes, computer reports, or other appropriate documents and files.
An institution's ALLL methodology related to FAS 114 loans begins with the use of its normal loan review procedures to identify whether a loan is impaired as defined by the accounting standard. Institutions should document:
(1) The method and process for identifying loans to be evaluated under FAS 114 and
(2) The analysis that resulted in an impairment decision for each loan and the determination of the impairment measurement method to be used (i.e., present value of expected future cash flows, fair value of collateral less costs to sell, or the loan's observable market price).
Once an institution has determined which of the three available measurement methods to use for an impaired loan under FAS 114, it should maintain supporting documentation as follows:
(1) When using the present value of expected future cash flows method:
(a) The amount and timing of cash flows,
(b) The effective interest rate used to discount the cash flows, and
(c) The basis for the determination of cash flows, including consideration of current environmental factors and other information reflecting past events and current conditions.
(2) When using the fair value of collateral method:
(a) How fair value was determined, including the use of appraisals, valuation assumptions, and calculations,
(b) The supporting rationale for adjustments to appraised values, if any,
(c) The determination of costs to sell, if applicable, and
(d) Appraisal quality and expertise of the appraiser.
(3) When using the observable market price of a loan method:
(a) The amount, source, and date of the observable market price.
Illustration A describes a practice used by a small financial institution to document its FAS 114 measurement of impairment using a comprehensive worksheet.
Some loans that are evaluated individually for impairment under FAS 114 may be fully collateralized and therefore require no ALLL. Q&A #3 in Appendix A presents an example of an institution whose loan portfolio includes fully collateralized loans and describes the documentation maintained to support the conclusion that no ALLL was needed for those loans.
For loans evaluated on a group basis under FAS 5, management should segment the loan portfolio by identifying risk characteristics that are common to groups of loans. Institutions decide how to segment their loan portfolios based on many factors, which vary with their business strategies as well as their information system capabilities. Smaller institutions that are involved in less complex activities often segment the portfolio into broad loan categories. This method of segmenting the portfolio is likely to be appropriate in only the smallest of institutions offering a narrow range of loan products. Larger institutions typically offer a more diverse and complex mix of loan products. Such institutions may start by segmenting the portfolio into major loan types but typically have more detailed information available that allows them to further segregate the portfolio into product line segments based on the risk characteristics of each portfolio segment. Regardless of the method used, documentation should be maintained to support that the loans in each segment have similar attributes or characteristics.
As economic and other business conditions change, institutions often modify their business strategies, which may result in adjustments to the way in which they segment their loan portfolio for purposes of estimating loan losses. Illustration B presents an example in which an institution refined its segmentation method to more effectively
Institutions use a variety of documents to support the segmentation of their portfolios. Some of these documents include:
(1) Loan trial balances by categories and types of loans,
(2) Management reports about the mix of loans in the portfolio,
(3) Delinquency and nonaccrual reports, and
(4) A summary presentation of the results of an internal or external loan grading review.
Reports generated to assess the profitability of a loan product line may be useful in identifying areas in which to further segment the portfolio.
Based on the segmentation of the portfolio, an institution estimates the loan and lease losses to determine the appropriate level of the FAS 5 portion of the ALLL.
One method of estimating loan losses for groups of loans is through the application of loss rates to the groups' aggregate loan balances. Such loss rates typically reflect historical loan loss experience for each group of loans, adjusted for relevant environmental factors (e.g., industry, geographical, economic, and political factors) over a defined period of time. If an institution does not have loss experience of its own, it may be appropriate to reference the loss experience of other institutions, provided that the institution demonstrates that the attributes of the loans in its portfolio segment are similar to those of the loans included in the portfolio of the institution providing the loss experience.
Before employing a loss estimation model, an institution should evaluate and modify, as needed, the model's assumptions to ensure that the resulting loss estimate is consistent with GAAP. Institutions that use loss estimation models typically document the evaluation, the conclusions regarding the appropriateness of estimating loan losses with a model or other loss estimation tool, and the support for adjustments to the model or its results.
To adjust historical loss rates for current conditions, institutions should consider environmental factors and then document which factors were used in the analysis. Factors that should be considered in adjusting historical loss rates include the following:
(1) Levels of and trends in delinquencies and impaired loans;
(2) Levels of and trends in charge-offs and recoveries;
(3) Trends in volume and terms of loans;
(4) Effects of any changes in risk selection and underwriting standards, and other changes in lending policies, procedures, and practices;
(5) Experience, ability, and depth of lending management and other relevant staff;
(6) National and local economic trends and conditions, and industry conditions; and
(7) Effects of changes in credit concentrations.
For any adjustment of historical loss rates, the institution should document that the adjustment is necessary to reflect current information, events, circumstances, and conditions in the loss rates. The second item in Illustration C provides an example of how an institution adjusts its commercial real estate historical loss rates for changes in local economic conditions. Q&A #4 in Appendix A provides an example of maintaining supporting documentation for adjustments to portfolio segment loss rates for an environmental factor related to an economic downturn in the borrower's primary industry. Q&A #5 in Appendix A describes one institution's process for determining and documenting an ALLL for loans that are not individually impaired but have characteristics indicating there are loan losses on a group basis.
To verify that ALLL balances are presented fairly in accordance with GAAP and are auditable, management should prepare a document that summarizes the amount to be reported in the financial statements for the ALLL. The board of directors should review and approve this summary.
Common elements in such summaries include:
(1) An estimate of the probable loss or range of loss incurred for each category evaluated (
(2) The aggregate probable loss estimated using the institution's methodology;
(3) A summary of the current ALLL balance;
(4) The amount, if any, by which the ALLL is to be adjusted;
(5) Depending on the level of detail that supports the ALLL analysis, detailed subschedules of loss estimates that reconcile to the summary schedule.
Illustration D describes how institutions may document their estimated ALLL by adding comprehensive explanations to their summary schedules.
Generally, an institution's review and approval process for the ALLL relies upon the data provided in these consolidated summaries. There may be instances in which individuals or committees that review the ALLL methodology and resulting allowance balance identify adjustments that need to be made to the loss estimates to provide a better estimate of loan losses. These changes may be due to information not known at the time of the initial loss estimate (
To verify that the ALLL methodology is effective and conforms to GAAP and supervisory guidance, an institution's directors should establish internal control procedures, appropriate for the size and complexity of the institution. These procedures should include an independent review of the methodology and its application.
In practice, financial institutions employ numerous procedures when validating the reasonableness of their ALLL methodology and determining whether there may be deficiencies in their overall methodology or loan grading process. Examples are:
(1) A review of trends in loan volume, delinquencies, restructurings, and concentrations.
(2) A review of previous charge-off and recovery history, including an evaluation of the timeliness of the entries to record both the charge-offs and the recoveries.
(3) A review by an independent party, such as an independent loan review committee, external auditors, or internal audit staff. This often involves the independent party reviewing, on a test basis, source documents and underlying assumptions to determine that the established methodology develops reasonable loss estimates.
(4) An evaluation of the appraisal process of the underlying collateral. This may be accomplished by periodically comparing the appraised value to the actual sales price on selected properties sold.
Management usually supports the validation process with the workpapers from the review of the ALLL function. Additional documentation often includes the summary findings of the independent third party reviewer. The institution's board of directors, or its designee, reviews the findings and acknowledges its review in its meeting minutes. If the methodology is changed based upon the findings of the validation process, documentation that describes and supports the changes should be maintained.
Institution A should maintain written documentation to support its measurement of loan impairment under FAS 114. If it uses the present value of expected future cash flows to measure impairment of a loan, it should document the amount and timing of cash flows, the effective interest rate used to discount the cash flows, and the basis for the determination of cash flows, including consideration of current environmental factors and other information reflecting past events and current conditions. When using the fair value of collateral to measure impairment, Institution A should document how it determined the fair value, including the use of appraisals, valuation assumptions and calculations, the supporting rationale for adjustments to appraised values, if any, and the determination of costs to sell, if applicable. Similarly, Institution A should document the amount, source, and date of the observable market price of a loan, if that method of measuring loan impairment is used.
Institution B believes that many of the assumptions that were used to value the collateral eighteen months ago do not reflect current market conditions and, therefore, the appraiser's valuation does not approximate current fair value of the collateral. Several buildings, which are comparable to the real estate collateral, were recently completed in the area, increasing vacancy rates, decreasing lease rates, and attracting several tenants away from the borrower. Accordingly, credit review personnel at Institution B adjust certain of the valuation assumptions to better reflect the current market conditions as they relate to the loan's collateral. After adjusting the collateral valuation assumptions, the credit review department determines that the current estimated fair value of the collateral, less costs to sell, is $8 million. Given that the recorded investment in the loan is $10 million, Institution B concludes that the loan is impaired by $2 million and records an allowance for loan losses of $2 million.
(1) Volatility of the market value of the collateral
(2) Recency and reliability of the appraisal or other valuation
(3) Recency of the bank or other third party inspection of the collateral
(4) Historical losses on similar loans
(5) Confidence in the bank's lien or security position including appropriate:
(a) Type of security perfection (e.g., physical possession of collateral or secured filing)
(b) Filing of security perfection (i.e., correct documents and with the appropriate officials), and
(c) Relationship to other liens.
Although Institution D has yet to confirm an increase in its loss experience as a result of these events, management knows that the institution lends to a significant number of businesses and individuals whose repayment ability depends upon the long-term viability of the manufacturing businesses. Institution D's management has identified particular segments of its commercial and consumer customer bases that include borrowers highly dependent upon sales or salary from the manufacturing businesses. Institution D's management performs an analysis of the affected portfolio segments to adjust its historical loss rates used to determine the ALLL.
Because Institution D has had similar situations in the past, its supporting documentation also includes an analysis of how the current situation compares to the institution's previous loss experiences in similar circumstances. A summary of the amount and rationale for the adjustment factor is presented to the audit committee and board for their review and approval prior to the issuance of the financial statements.
Institution E segments its loan portfolio to estimate loan losses under FAS 5. Two of its loan portfolio segments are Segment 1 and Segment 2. The loan to Company Y has risk characteristics similar to the loans included in Segment 1 and the loan to Company Z has risk characteristics similar to the loans included in Segment 2.
Institution E documents its decision to include its loans to Company Y and Company Z in its determination of its ALLL under FAS 5. It also documents the specific characteristics of the loans that were the basis for grouping these loans with other loans in Segment 1 and Segment 2, respectively. Institution E maintains documentation to support its method of estimating loan losses for Segment 1 and
An ALLL recorded pursuant to GAAP is an institution's best estimate of the probable amount of loans and lease-financing receivables that it will be unable to collect based on current information and events.
Under GAAP, Statement of Financial Accounting Standards No. 5, Accounting for Contingencies (FAS 5), provides the basic guidance for recognition of a loss contingency, such as the collectibility of loans (receivables), when it is probable that a loss has been incurred and the amount can be reasonably estimated. Statement of Financial Accounting Standards No. 114, Accounting by Creditors for Impairment of a Loan (FAS 114) provides more specific guidance about the measurement and disclosure of impairment for certain types of loans.
For individually impaired loans, FAS 114 provides guidance on the acceptable methods to measure impairment. Specifically, FAS 114 states that when a loan is impaired, a creditor should measure impairment based on the present value of expected future principal and interest cash flows discounted at the loan's effective interest rate, except that as a practical expedient, a creditor may measure impairment based on a loan's observable market price or the fair value of collateral, if the loan is collateral dependent. When developing the estimate of expected future cash flows for a loan, an institution should consider all available information reflecting past events and current conditions, including the effect of existing environmental factors. The following Illustration provides an example of an institution estimating a loan's impairment when the loan has been partially charged-off.
Large groups of smaller-balance homogeneous loans that are collectively evaluated for impairment are not included in the scope of FAS 114.
Institutions should ensure that they do not layer their loan loss allowances. Layering is the inappropriate practice of recording in the ALLL more than one amount for the same probable loan loss. Layering can happen when an institution includes a loan in one segment, determines its best estimate of loss for that loan either individually or on a group basis (after taking into account all appropriate environmental factors, conditions, and events), and then includes the loan in another group, which receives an additional ALLL amount.
There are certain common elements an institution should incorporate in its loan loss allowance methodology. Generally, an institution's methodology should:
(1) Include a detailed analysis of the loan portfolio, performed on a regular basis;
(2) Consider all loans (whether on an individual or group basis);
(3) Identify loans to be evaluated for impairment on an individual basis under FAS 114 and segment the remainder of the portfolio into groups of loans with similar risk characteristics for evaluation and analysis under FAS 5;
(4) Consider all known relevant internal and external factors that may affect loan collectibility;
(5) Be applied consistently but, when appropriate, be modified for new factors affecting collectibility;
(6) Consider the particular risks inherent in different kinds of lending;
(7) Consider collateral values (less costs to sell), where applicable;
(8) Require that analyses, estimates, reviews and other ALLL methodology functions be performed by competent and well-trained personnel;
(9) Be based on current and reliable data;
(10) Be well documented with clear explanations of the supporting analyses and rationale; and
(11) Include a systematic and logical method to consolidate the loss estimates and ensure the ALLL balance is recorded in accordance with GAAP.
A systematic methodology that is properly designed and implemented should result in an institution's best estimate of the ALLL. Accordingly, institutions should adjust their ALLL balance, either upward or downward, in each period for material differences between the results of the systematic determination process and the unadjusted ALLL balance in the general ledger.
The Commission hereby gives notice of the filing of the following agreement(s) under the Shipping Act of 1984. Interested parties can review or obtain copies of agreements at the Washington, DC offices of the Commission, 800 North Capitol Street, NW., Room 940. Interested parties may submit comments on an agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within 10 days of the date this notice appears in the
By Order of the Federal Maritime Commission.
Notice is hereby given that the following Ocean Transportation Intermediary licenses have been reissued by the Federal Maritime Commission pursuant to section 19 of the Shipping Act of 1984, as amended by OSRA 1998 (46 U.S.C. app. 1718) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, 46 CFR part 515.
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for licenses as Non-Vessel Operating Common Carrier and Ocean Freight Forwarder—Ocean Transportation Intermediary pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. app. 1718 and 46 CFR part 515).
Persons knowing of any reason why the following applicants should not receive a license are requested to contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, D.C. 20573.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than September 29, 2000.
Federal Trade Commission.
Notice of proposed “Safe Harbor” Guidelines and request for public comment.
The Federal Trade Commission publishes this notice and request for public comment concerning proposed self-regulatory guidelines submitted by TRUSTe, under the safe harbor provision of the Children's Online Privacy Protection Rule, 16 CFR 312.10.
Written comments must be submitted on or before October 10, 2000.
Written comments should be submitted to: Secretary, Federal Trade Commission, Room H-159, 600 Pennsylvania Avenue, NW., Washington, DC 20580. The Commission requests that commenters submit the original plus five copies, if feasible. To enable prompt review and public access, comments also should be submitted, if possible, in electronic form, on either a 5
Toby Levin, (202) 326-3156, Mamie Kresses, (202) 326-2070, or Karen Muoio, (202) 326-2491, Division of Advertising Practices, Bureau of Consumer Protection, Federal Trade Commission, 601 Pennsylvania Ave., NW., Washington, DC 20580.
On October 20, 1999, the Commission issued its final Rule
Pursuant to Section 312.10 of the Rule, TRUSTe has submitted proposed self-regulatory guidelines to the Commission for approval. The full text of the proposed guidelines is available on the Commission's website, <
The Commission is seeking comment on various aspects of the proposed guidelines, and is particularly interested in receiving comment on the questions that follow. These questions are designed to assist the public and should not be construed as a limitation on the issues on which public comment may be submitted. Responses to these questions should cite the numbers and subsection of the questions being answered. For all comments submitted, please provide any relevant data, statistics, or any other evidence, upon which those comments are based.
1. Please provide comment on any or all of the provisions in the proposed guidelines. For each provision commented on please describe (a) the impact of the provision(s) (including any benefits and costs), if any, and (b) what alternatives, if any, TRUSTe should consider, as well as the costs and benefits of those alternatives.
2. Do the provisions of the proposed guidelines governing operators' information practices provide “the same or greater protections for children” as those contained in Sections 312.2-312.8 of the Rule?
3. Are the mechanisms used to assess operators' compliance with the guidelines effective?
4. Are the incentives for operators' compliance with the guidelines effective?
5. Do the guidelines provide adequate means for resolving consumer complaints? If not, please describe (a) how the proposed guidelines could be modified to resolve consumer complaints adequately, and (b) the costs and benefits of those modifications.
By direction of the Commission.
The National Vaccine Program Office (NVPO), of the Centers for Disease Control and Prevention (CDC), announces the following meeting.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following meeting.
This Workshop should be of interest to people working in the vaccine and immunization arena including health communication and public affairs specialists, public and private sector health care providers, parent and consumer groups, vaccine manufacturers, and immunization program managers and directors.
Agenda items are subject to change as priorities dictate.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by November 6, 2000.
Submit written comments on the collection of information to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments on the collection of information on the Internet at: http://www.accessdata.fda.gov/scripts/oc/dockets/comments/commentdocket.cfm. All comments should be identified with the docket number found in brackets in the heading of this document.
Karen L. Nelson, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1482.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
On November 21, 1997, the President signed the Food and Drug Administration Modernization Act (the Modernization Act) (Public Law 105-115) into law. Section 116 of the Modernization Act amended the Federal Food, Drug, and Cosmetic Act (the act) by adding section 506A (21 U.S.C. 356a), which describes requirements and procedures for making and reporting manufacturing changes to approved new drug applications (NDA's) and abbreviated new drug applications (ANDA's), to new and abbreviated animal drug applications, and to license applications for biological products.
The guidance is intended to assist applicants in determining how they should report changes to an approved NDA or ANDA under section 116 of the Modernization Act, which provides requirements for making and reporting manufacturing changes to an approved application and for distributing a drug product made with such changes.
The guidance provides recommendations to holders of approved NDA's and ANDA's who intend to make postapproval changes in accordance with section 506A of the act. The guidance covers recommended reporting categories for postapproval changes for drugs, other than specified biotechnology and specified synthetic biological products. Recommendations
Section 116 of the Modernization Act amended the act by adding section 506A. Some of the basic elements of section 506A of the act are as follows:
• A drug made with a manufacturing change, whether a major manufacturing change or otherwise, may be distributed only after the applicant validates the effects of the change on the identity, strength, quality, purity, and potency of the drug as these factors may relate to the safety or effectiveness of the drug (section 506A(a)(1) and (b) of the act). This section recognizes that additional testing, beyond testing to ensure that an approved specification is met, is required to ensure unchanged identity, strength, quality, purity, or potency as these factors may relate to the safety or effectiveness of the drug.
• A drug made with a major manufacturing change may be distributed only after the applicant submits a supplemental application to FDA and the supplemental application is approved by the agency. The application is required to contain information determined to be appropriate by FDA and include the information developed by the applicant when “validating the effects of the change” (section 506A(c)(1) of the act).
• A major manufacturing change is a manufacturing change determined by FDA to have substantial potential to adversely affect the identity, strength, quality, purity, or potency of the drug as these factors may relate to the safety or effectiveness of the drug. Such changes include: (1) A change made in the qualitative or quantitative formulation of the drug involved or in the specifications in the approved application or license unless exempted by FDA by regulation or guidance; (2) a change determined by FDA by regulation or guidance to require completion of an appropriate clinical study demonstrating equivalence of the drug to the drug manufactured without the change; and (3) other changes determined by FDA by regulation or guidance to have a substantial potential to adversely affect the safety or effectiveness of the drug (section 506A(c)(2) of the act).
• FDA may require submission of a supplemental application for drugs made with manufacturing changes that are not major (section 506A(d)(1)(B) of the act) and establish categories of manufacturing changes for which a supplemental application is required (section 506A(d)(1)(C) of the act). In such a case the applicant may begin distribution of the drug 30 days after FDA receives a supplemental application unless the agency notifies the applicant within the 30-day period that prior approval of the application is required (section 506A(d)(3)(B)(i) of the act). FDA may also designate a category of manufacturing changes that permit the applicant to begin distributing a drug made with such changes upon receipt by the agency of a supplemental application for the change (section 506A(d)(3)(B)(ii) of the act). If FDA disapproves a supplemental application, the agency may order the manufacturer to cease the distribution of drugs that have been made with the disapproved change (section 506A(d)(3)(B)(iii) of the act).
• FDA may authorize applicants to distribute drugs without submitting a supplemental application (section 506A(d)(1)(A) of the act) and may establish categories of manufacturing changes that may be made without submitting a supplemental application (section 506A(d)(1)(C) of the act). The applicant is required to submit a report to FDA on such a change and the report is required to contain information the agency deems to be appropriate and information developed by the applicant when validating the effects of the change. FDA may also specify the date on which the report is to be submitted (section 506A(d)(2)(A) of the act). If during a single year an applicant makes more than one manufacturing change subject to an annual reporting requirement, FDA may authorize the applicant to submit a single report containing the required information for all the changes made during the year (annual report) (section 506A(d)(2)(B) of the act).
Section 506A of the act provides FDA with considerable flexibility to determine the information and filing mechanism required for the agency to assess the effect of manufacturing changes in the safety and effectiveness of the product. There is a corresponding need to retain such flexibility in the guidance on section 506A of the act to ensure that the least burdensome means for reporting changes are available. FDA believes that such flexibility will allow it to be responsive to increasing knowledge of and experience with certain types of changes and help ensure the efficacy and safety of the products involved. For example, a change that may currently be considered to have a substantial potential to have an adverse effect on the safety or effectiveness of the product may, at a later date, based on new information or advances in technology, be determined to have a lesser potential to have such an adverse effect. Conversely, a change originally considered to have a minimal or moderate potential to have an adverse effect on the safety or effectiveness of the product may later, as a result of new information, be found to have an increased, substantial potential to adversely affect the product. The guidance enables the agency to respond more readily to knowledge gained from manufacturing experience, further research and data collection, and advances in technology. The guidance describes the agency's current interpretation of specific changes falling into the four filing categories. Section 506A of the act explicitly provides FDA the authority to use guidance documents to determine the type of changes that do or do not have a substantial potential to adversely affect the safety or effectiveness of the drug product. The use of guidance documents allows FDA to more easily and quickly modify and update important information.
As explained below, FDA estimates the burden of this collection of information as follows:
Section 506A(a)(1) and (b) of the act require the holder of an approved application to validate the effects of a manufacturing change on the identity, strength, quality, purity, or potency of the drug as these factors may relate to the safety or effectiveness of the drug before distributing a drug made with the change. Under section 506A(d)(3)(A) of the act, information developed by the applicant to validate the effects of the change regarding identity, strength, quality, purity, and potency is required to be submitted to FDA as part of the supplement or annual report. Thus, no separate estimates are provided for section 506A in table 1; estimates for validation requirements are included in the estimates for supplements and annual reports. The guidance does not provide recommendations on the specific information that should be developed by the applicant to validate the effect of the change on the identity, strength (
Section 506A (c)(1) and (c)(2) of the act set forth requirements for changes requiring supplement submission and approval prior to distribution of the product made using the change (major changes). Under this section, a supplement must be submitted for any change in the product, production process, quality controls, equipment, or facilities that has a substantial potential to have an adverse effect on the identity, strength, quality, purity, or potency of the product as these factors may relate to the safety or effectiveness of the product. The applicant must obtain approval of a supplement from FDA prior to distribution of a product made using the change.
Based on data concerning the number of supplements received by the agency, FDA estimates that approximately 1,744 supplements will be submitted annually under section 506A(c)(1) and (c)(2) of the act. FDA estimates that approximately 594 applicants will submit such supplements, and that it will take approximately 120 hours to prepare and submit to FDA each supplement.
Section 506A(d)(1)(B), (d)(1)(C), and (d)(3)(B)(i) of the act set forth requirements for changes requiring supplement submission at least 30 days prior to distribution of the product made using the change (moderate changes). Under this section, a supplement must be submitted for any change in the product, production process, quality controls, equipment, or facilities that has a moderate potential to have an adverse effect on the identity, strength, quality, purity, or potency of the product as these factors may relate to the safety or effectiveness of the product. Distribution of the product made using the change may begin not less than 30 days after receipt of the supplement by FDA.
Based on data concerning the number of supplements received by the agency, FDA estimates that approximately 2,754 supplements will be submitted annually under section 506A(d)(1)(B), (d)(1)(C), and (d)(3)(B)(i) of the act. FDA estimates that approximately 594 applicants will submit such supplements, and that it will take approximately 80 hours to prepare and submit to FDA each supplement.
Under section 506A(d)(3)(B)(ii) of the act, FDA may designate a category of changes for the purpose of providing that, in the case of a change in such category, the holder of an approved application may commence distribution of the drug upon receipt by the agency of a supplement for the change. Based on data concerning the number of supplements received by the agency, FDA estimates that approximately 486 supplements will be submitted annually under section 506A(d)(3)(B)(ii) of the act. FDA estimates that approximately 486 applicants will submit such supplements, and that it will take approximately 80 hours to prepare and submit to FDA each supplement.
Section 506A(d)(1)(A), (d)(1)(C), (d)(2)(A), and (d)(2)(B) of the act set forth requirements for changes to be described in an annual report (minor changes). Under this section of the act, changes in the product, production process, quality controls, equipment, or facilities that have a minimal potential to have an adverse effect on the identity, strength, quality, purity, or potency of the product as these factors may relate to the safety or effectiveness of the product must be documented by the applicant in the next annual report.
Based on data concerning the number of supplements and annual reports received by the agency, FDA estimates that approximately 6,929 annual reports will include documentation of certain manufacturing changes as required under section 506A(d)(1)(A), (d)(1)(C), (d)(2)(A), and (d)(2)(B) of the act. FDA estimates that approximately 704 applicants will submit such information, and that it will take approximately 25 hours to prepare and submit to FDA the information for each annual report.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by November 6, 2000.
Submit electronic comments on the collection of information via the Internet at: http://www.accessdata.fda.gov/scripts/oc/dockets/comments/commentdocket.cfm. Submit written comments on the collection of information to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. All comments should be identified with the docket number found in brackets in the heading of this document.
JonnaLynn P. Capezzuto, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency request or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques when appropriate, and other forms of information technology.
Under sections 351 and 361 of the Public Health Service Act (42 U.S.C. 262 and 42 U.S.C. 264), FDA prescribes standards designed to ensure the safety, purity, potency, and effectiveness of biological products including blood and blood components and to prevent the transmission of communicable diseases. To accomplish this, FDA requires, among other things, that each unit of Whole Blood or Source Plasma be tested by a licensed serologic test for hepatitis B surface antigen (HBsAg). Section 610.40(b)(4) (21 CFR 610.40(b)(4)) permits preapproved or emergency shipments of blood products for further manufacturing before the test for HBsAg is completed. To obtain approval for such shipments, the collection facility must submit a description of the control procedures to be used by the collection facility and manufacturer. Proper control procedures are essential to ensure the safe shipment, handling, and quarantine of untested or incompletely tested blood products, communication of test results, and appropriate use or disposal of the blood products based on the test results. Section 610.40(d)(1)(v) and (d)(2)(iv) requires that a collection facility notify FDA of shipments of HBsAg reactive source blood, plasma, or serum for manufacturing into hepatitis B vaccine and licensed or unlicensed in vitro diagnostic biological products, including clinical chemistry control reagents. The reporting requirements inform FDA of the shipment of potentially infectious biological products that may be capable of transmitting disease. FDA's monitoring of such activity is essential should any deviations occur that may require immediate corrective action to protect public safety.
The respondents for this information collection are the blood collection facilities that ship hepatitis B reactive products. Only a few firms are actually engaged in shipping hepatitis B reactive products and making the reports required by § 610.40. Also, there are very few to no emergency shipments per year related to further manufacturing and the only product currently shipped prior to completion of hepatitis B testing is a licensed product, Source Leukocytes. Shipments of Source Leukocytes are preapproved under the product license applications and do not require notification of shipment. Currently, there have been no respondents reporting emergency or preapproved shipments (§ 610.40(b)). However, FDA is listing one report per year for emergency or preapproved shipments to account for the possibility of future emergency shipments. The estimated number of respondents and total annual responses under § 610.40(d) are based on the annual average of reports submitted to FDA in 1999. The hours per response are based on past FDA experience.
FDA estimates the burden of this collection of information as follows:
FDA has calculated no additional burden in this information collection package for the labeling requirements in § 610.40(d) because the information and statements on the label necessary for public disclosure and safety are provided by FDA in these regulations. Under 5 CFR 1320.3(c)(2), the public disclosure of information originally supplied by the Federal Government to the recipient for the purpose of disclosure to the public is not a collection of information.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Environmental Impact Considerations” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Karen L. Nelson, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1482.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Request for Samples and Protocols” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
JonnaLynn P. Capezzuto, Office of Information Resources Management (HFA 250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a temporary permit has been issued to Iceberg Industries Corp. to market test a product designated as “Borealis Iceberg Water” that deviates from the U.S. standard of identity for bottled water. The purpose of the temporary permit is to allow the applicant to measure consumer acceptance of the product, identify mass production problems, and assess commercial feasibility, in support of a petition to amend the standard of identity for bottled water.
This permit is effective for 15 months, beginning on the date the food is introduced or caused to be introduced into interstate commerce, but not later than December 6, 2000.
Loretta A. Carey, Center for Food Safety and Applied Nutrition (HFS-822), Food and Drug Administration, 200 C St. SW., Washington, DC 20204, 202-205-4561.
In accordance with 21 CFR 130.17 concerning temporary permits to facilitate market testing of foods deviating from the requirements of the standards of identity issued under section 401 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 341), FDA is giving notice that a temporary permit has been issued to Iceberg Industries Corp., 16 Forest Rd., suite 200, P.O. Box 8251, St. John's, Newfoundland, Canada, A1B 3N4.
The permit covers limited interstate marketing tests of products identified as “iceberg water” that deviate from the U.S. standard of identity for bottled water (21 CFR 165.110) in that the source of the water is an iceberg. The test product meets all the requirements of the standard with the exception of the source definition. Because test preferences vary by area, along with social and environmental differences, the purpose of this permit is to test the product throughout the United States.
Under this temporary permit, the bottled water will be test marketed as “Borealis Iceberg Water.”
This permit provides for the temporary marketing of 150,000 cases of the 24 x 350 milliliters (ml), 150,000 cases of the 12 x 1 liters (L), and another 100,000 cases of the 24 x 500 ml giving 400,000 cases in total. The total fluid weight of the test product will be 1,124,024 gallons or 4,260,000 L). The test product will be manufactured at Iceberg Industries Corp. Water Bottling Plant, Daniel's Point, Trepassy, Newfoundland, Canada, A0A 4B0. The product will be distributed by Iceberg Industries in the United States.
The information panel of the labels will bear nutrition labeling in accordance with 21 CFR 101.9. Each of the ingredients used in the food must be declared on the labels as required by the applicable sections of 21 CFR part 101. This permit is effective for 15 months, beginning on the date the food is introduced or caused to be introduced into interstate commerce, but not later than December 6, 2000.
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget, in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). To request a copy of the clearance requests submitted to OMB for review, call the HRSA Reports Clearance Office on (301) 443-1129.
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
State AIDS Drug Assistance Programs (ADAPs), funded under Title II of the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act Amendments of 1996 (Pub. L. 104-146), are designed to provide low income, uninsured, and underinsured individuals with access to HIV/AIDS medications that prevent serious deterioration of health arising from HIV disease, including the prevention and treatment of opportunistic infections.
During the last several years, there has been an increasing need for pharmaceuticals among uninsured and underinsured low-income individuals who are HIV positive or diagnosed with AIDS. Due to the increasing demand, the Division of Service Systems (DSS), Health Resources and Services Administration (HRSA) recognizes the importance of program planning and budget forecasting in order to maximize resources, and proposes to revise the current data collection form to better collect relevant client utilization data and program expenditure information from State ADAPs. This data collection effort is designed to allow DSS/HRSA (the funding agency) to monitor nationwide trends in program growth, client utilization, expenditures and to assess the capacity of State ADAPs to maintain services for clients throughout the fiscal year. The revised form will improve DSS/HRSA's ability to track the prices of HIV/AIDS drugs in order to ensure that State ADAPs are receiving the best price possible, to identify emerging issues and technical assistance needs, and to share information among State ADAPs. It will also assist Title II grantees, State ADAPs, DSS/HRSA staff, and policymakers at both the Federal and State level to better understand the level of client demand for medications and the resources needed to meet those needs.
The revised report will collect time-specific data for the number of enrolled clients, the number of new clients, the number of utilizing clients, the level of funds expended, and the price of HIV/AIDS drugs. A text box is provided to allow State ADAPs to report significant changes to their program, such as a projected budget shortfall, program restrictions, client waiting lists, a change in eligibility criteria, or formulary changes. On a quarterly basis, State ADAPs will report the purchase price paid on a select number of HIV pharmaceuticals dispensed by each program. DSS/HRSA will continue to compile summary reports that are distributed back to grantees and State ADAPs on a quarterly basis. The data collected is used to guide program planning, formulate budget recommendations, and monitor State ADAPs, especially monitoring the balance between an individual State ADAP's available resources against the client demand for medications. The burden estimates are as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to: John Morrall, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC. 20503.
National Institutes of Health, Public Health Service, DHHS.
Notice.
The inventions listed below are owned by agencies of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
Successful solutions to numerous problems in the biochemical sciences depend on the ability to produce “pure” proteins and recognize the degree to which proteins might be modified. Current methods used for assessing purity are relatively nonspecific and insensitive to small differences in molecular weight. The inventors have developed a computer-implemented method and system for nonparametric statistical analysis of matrix-assisted laser desorption ionization (MALDI) protein spectra but is equally applicable to deconvoluted electrospray ionization (ESI) spectra. The invention facilitates assessing protein heterogeneity and detection of otherwise indistinguishable differences in the distribution of molecular weight. A principal advantage is that no additional instrumentation is required beyond that typically included in a mass spectrometry analysis system.
The current invention embodies the identification of a novel gene and protein, Chap1/Dsk2, a ubiquitin-linked protein which appears to play a vital role in regulating mitosis. Identified also is the conserved 20 amino acid region within the ATPase domain of the protein chaperone STCH, an Hsp70-like protein, which is the binding site for Chap1/Dsk2 and other ubiquitin-linked proteins.
Protein chaperones are essential for cell viability, regulating various cell cycle events including the biosynthesis, folding and unfolding, transport, multiunit assembly, and degradation of cell proteins. Overexpression of protein chaperones, such as STCH, can serve to suppress tumorigenesis and apoptosis. It therefore is believed that the peptide identified as the binding domain of STCH may have potential for use as a therapeutic agent against cancer or various infectious diseases, via modulation of tumorigenesis, apoptosis, or the multiunit assembly of viral particles such as HIV.
The biological activities of IL-6 include the stimulation of B and T cell growth and differentiation, production of acute-phase proteins by hepatocytes, multilineage hematopoiesis, osteoblast formation, maturation of megakaryocytes and platelet production. An abnormal expression of IL-6 may be involved in the pathogenesis of a variety of diseases, among which are multiple myeloma, rheumatoid arthritis, postmenopausal osteoporosis, chronic autoimmune diseases, Castleman's disease and AIDS. Methods of abrogating the effects of abnormal expression of IL-6 can be made at its site of production or at its target. The inventors of this technology have focused on the latter technique. Using a unique, newly patented, automated peptide array system, the inventors have studied specific sequences potentially involved in protein-protein interactions at the molecular level. This system was used to identify and isolate potential target peptide sequences within the IL-6 receptor molecule. Candidate peptide sequences were identified by direct binding to the IL-6 ligand by optimally displayed IL-6 receptor peptide segments in solid phase form. The specific binding properties of the peptide sequences were verified by using IL-6 heteroantisera, and the peptides have been shown to mitigate or reverse the effects of the above referenced properties of IL-6 in tissue culture.
The present invention relates to the field of apoptosis, in particular, it relates to apoptosis-modifying fusion proteins with at least two domains, one of which targets the fusion proteins to a target cell, and another of which modifies an apoptotic response of the target cell. For example, fusing various cell-binding domains to Bcl-XL and Bad allows targeting to specific subsets of cells in vivo, permitting treatment and/or prevention of cell-death related consequences of various diseases and injuries. This technology could be used to minimize or prevent apoptotic damage that can be caused by neurodegenerative disorders,
This patent application has two components. The first is the identification of a functional 50bp fragment of a previously known chicken chromatin insulator protein. The second component is the identification of the REBL (Required for Enhancer Blocking) CTCF protein (CCCTC-binding factor) which binds to the 50bp fragment. [The relationship between these two can be analogized as a receptor (50 bp fragment) and its ligand (the REBL CTCF protein).] These two elements can be used separately or together to regulate gene expression.
An insulator is a DNA sequence which is capable of acting as a barrier to neighboring cis-acting elements, preventing gene activation when juxtaposed between an enhancer and a promoter (
The identification of the REBL CTCF protein as an agent which binds to the 50 bp insulator fragment and whose binding activity is necessary for blocking of enhancer activity provides an additional element which may be used to more specifically control gene regulation. As most gene expression is dependent on the activity of multiple components the identification of a specific binding factor which functions as a blocking enhancer activity may permit more precise control of gene expression. The human REBL protein has regions which share homology with previously disclosed partial human cDNAs. It has a molecular weight of 135 kDa. A chicken homolog has also been identified. CTCF was originally identified as a repressor of the chicken c-myc gene.
National Institutes of Health, Public Health Service, DHHS.
Notice.
The inventions listed below are owned by agencies of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by contacting Marlene Shinn, J.D., at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7056 ext. 285; fax: 301/402-0220; e-mail: shinnm@od.nih.gov. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
Millions of dollars are spent each year to heal chronic non-healing wounds and in the treatment of severe burn patients. The NIH announces a new technology that may lead to improved approaches to treatment of burn patients and the reduction of scarring and more rapid closure of both acute (surgical) and chronic wounds (e.g., diabetic, decubitus, and venus statis ulcers).
Smad2 and Smad3 are highly homologous cytoplasmic proteins which function to transduce signals from Transforming Growth Factor-beta (TGF-β) and activin receptors to promoters of target genes found in the nucleus. This new technology indicates that interference with specific signaling pathways downstream of TGF-β may be more selective and have a better outcome than approaches aimed at blocking all effects of this pleiotropic cytokine. Specifically, it is proposed that elimination or inhibition of Smad3 may interfere with fibrogenic mechanisms and reduce the accumulation of scar tissue associated with high dose radiation and wound healing, while increasing the rate of re-epithelialization of wounds.
Although this technology is still in an early stage, our researchers have obtained solid evidence of the involvement of Smad3 in these processes by use of a Smad3 null mouse model which they have developed. Based on these results, it is believed that antisense Smad3 or small molecule inhibitors of Smad3 will have clinical applications in wound healing, in improving growth and reducing unwanted fibrosis of autologous skin grafts for treatment of burn patients, and in treatment of radiation fibrosis and other fibrotic diseases associated with chronic inflammation. In addition, the discovery of inhibitors to Smad3 signaling may lead to radiation dose escalation and accelerated tumor cell death while reducing the side effects associated with radiation therapy.
There presently exist assays for determining DNA breakage due to stresses such as radiation and toxins. These include the TUNEL assay and single cell gel electrophoresis, among others. The difficulty in using these and other assays arises in that a great number of DNA breaks are necessary for adequate detection of the breakage. Since only 40 double-stranded breaks in the DNA leads to cell death, it is evident that there is a need for an assay with greater specificity.
The NIH announces a new technology which relates to such an improvement over current DNA detection assays, with the ability to be sensitive enough to detect a single DNA double-stranded break in a cell's nucleus. This method for detection uses antibodies directed against a synthetic phosphorylated peptide containing the mammalian γ-H2AX C-terminal sequence for deletion of DNA double-stranded breaks. It centers on the activity of the H2A histone. In response to a DNA break, H2A can become phosphorylated in great numbers and provide protection for the break site to assist in repair. The antibody and method available show specificity for this occurrence and thus allow detection at levels much lower than are presently needed by other detection techniques. Use of such technology could be widespread, both as a diagnostic tool and with specific DNA breakage-related disease and syndrome research.
National Institutes of Health, Public Health Service, DHHS.
Notice.
The inventions listed below are owned by agencies of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
Pertussis Toxin (PT) in its chemically detoxified forms has emerged as the most promising acellular vaccine against
The inventors have found that alpha interferon and the supernatant of necrotic cells can act as adjuvants when co-injected along with a protein, such as OVA, to initiate a primary
National Institutes of Health, Public Health Service, DHHS.
Notice.
The inventions listed below are owned by agencies of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and
Licensing information and copies of the U.S. patent applications listed below may be obtained by Uri Reichman, Ph.D., at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7736 ext. 240; fax: 301/402-0220; e-mail: reichmau@od.nih.gov. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
The invention relates to the design and creation of recombinant chimeric parainfluenza viruses, novel vaccine candidates against PIV and non-PIV pathogens. The chimeric viruses utilize the PIV genome as a carrier/vector for heterologous PIV or non-PIV genes that code for the protective antigens of the pathogens. For example, the glycoproteins genes of PIV1 and PIV2 can be incorporated into PIV3 genome, either substituting for or in addition to the vector's glycoprotein genes. The latter design can serve as a single vaccine against the three types of PIV pathogens. Furthermore, PIV can serve as a carrier for the “protective” genes of non-PIV pathogens such as measles, RSV, mumps, herpes, influenza and more. In this design, again, the “donor” genes can substitute for or be added to the vector's protecting genes. The latter design can serve as a single vaccine against plurality of pathogens. In particular, the invention describes the potential benefit of developing new vaccine candidates against the measles virus.
The live attenuated measles virus currently in commercial use must be administered by intramuscular injection, and cannot be given until 12 months of age due to neutralization by maternal antibodies present in young infants. There is a strong need to develop a vaccine which will be effective in the first year of life. A chimeric PIV3-measles vaccine described in this invention has shown to confer protection against the two pathogens. Initial studies indicate that this vaccine candidate will be able to circumvent the difficulties encountered by the currently licensed vaccine, i.e., it will be possible to administer the vaccine by intranasal route so that it will be effective in the presence of maternal antibodies. This vaccine will make it possible, for the first time, to immunize young infants against the deadly measles virus.
The invention relates to the engineering and creation of recombinant chimeric human-bovine parainfluenza viruses (PIVs) and novel vaccine candidates against PIV. The chimera of the invention include a partial or complete “background” PIV genome or antigenome derived from or patterned after a bovine PIV virus, combined with one or more heterologous gene(s) or genome segment(s) of a human PIV virus to form a human-bovine chimeric PIV genome or antigenome. The inverted design is also possible, where the chimeric PIV incorporates a partial or complete human PIV “background” genome or antigenome, combined with one or more heterologous gene(s) or genome segment(s) from bovine PIV, whereby the resultant chimeric virus is attenuated by virtue of the host-range restriction specified by the bovine genes. In particular, the invention describes the creation of chimera where the human PIV HN and F “protective” genes are incorporated into a bovine “background” genome, and another one where bovine PIV3 P and M open reading frames replace that of human in a human PIV3 “background” genome. The vaccine candidates created by this recombinant technique can be further attenuated by incorporating specific point mutations and nucleotide modifications into the genome to yield desired phenotypic and structural effects.
The invention relates to the engineering and creation of novel live-attenuated RSV vaccine candidates. The viruses of this invention have been modified by shifting the position of one or more of various viral genes relative to the viral promoter. The gene-shifted RSVs are constructed by insertion, deletion and rearrangement of genes or genome segments within the recombinant genome or antigenome. Shifting the position of the gene(s) in this manner provides for a selective increase or decrease in expression of the gene(s), depending on the nature and degree of the positional shift. Genes of interest for manipulation to create gene position-shifted RSV include any of the NS1, NS2, N, P, M, SH, M2(ORF1), M2(ORF2), L, F or G genes or genome segment.
One modification of particular interest is to place the G and F protective antigen genes in a promoter-proximal position for increased expression. The gene position-shifted RSV can be further manipulated by the addition of specific nucleotide and amino acid point mutations or host range restriction determinants to yield desired phenotypic and structural effects. This technique offers the possibility of producing a vaccine that is “better than nature” by increasing the relative expression of particular genes.
The invention relates to a multiplex system that allows simultaneous detection and identification of any one of six different species of mycobacteria,
The invention relates to the discovery that a putative gene of
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552(c)94) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the National Heart, Lung, and Blood Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the Board of Scientific Counselors, NIDCD.
The meeting will be open to the public as indicated below, with
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute on Deafness and Other Communication Disorders, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the National Advisory Dental and Craniofacial Research Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the Board of Scientific Counselors, National Library of Medicine.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Library of Medicine, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
National Institutes of Health, Public Health Service, DHHS.
Notice.
This notice in accordance with 35 U.S.C. 209(c)(1) and 37 CFR 404.7(a)(1)(I) that the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an exclusive world-wide license to U.S. Patents and Patent Applications USPA SN: 60/185,039, entitled: “Anti-EGFRvIII with Improved Cytotoxicity and Yield, Immunotoxins Based
Only written comments and/or applications for a license which are received by NIH on or before November 6, 2000 will be considered.
Requests for copies of the patent applications, inquiries, comments and other materials relating to this contemplated exclusive licenses should be directed to: J. R. Dixon, Ph.D., Technology Licensing Specialist, Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804. Telephone: (301) 496-7735 ext. 206; Facsimile: (301) 402-0220, E-Mail: DixonJ@OD.NIH.GOV. A signed Confidentiality Agreement will be required to receive copies of any patent applications.
The technology is directed to the use of TGF-Alpha-PE38 and MR-1-1(dsFv)-PE38KDEL [= Anti-EGFRvIII(dsFv)-PE38KDEL] based immunotoxins as an
The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35
U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless within sixty (60) days from the date of this published notice, NIH receives written evidence and argument that establishes that the grant of the exclusive license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Applications for a license [
National Institutes of Health (NIH), Public Health Service, DHHS.
Notice.
Respondents should provide their views on the value of the NIH document and their experience in implementing the document within their institution and with other entities when providing or receiving research tools. We would appreciate receiving information as to the issues or situations encountered, the effect on operations or research, any specific terms or actions in the Guidelines and/or in institution/company documents that were found to be of assistance or problematic, and the name or type of organizations involved (educational institution, for-profit, etc.). Comments offered in confidence should be marked as such.
Comments should be addressed to: Research Tools Guidelines Project, Theodore J. Roumel, NIH Office of Technology Transfer, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852-3804. Comments may also be sent by facsimile transmission to Research Tools Guidelines Project, Attention: Theodore J. Roumel, at 301-402-3257, or by e-mail to
Comments must be received by NIH on or before October 12, 2000.
Office of the Assistant Secretary for Housing, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Wayne Eddins, Reports Management Officer, Department of Housing and Urban Development, 451 7th Street, SW., L'Enfant Building, Room 8202, Washington, DC 20410, telephone (202) 708-5221 (this is not a toll-free number) for copies of the proposed forms and other available information.
Michael L. McCullough, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410, telephone number (202) 708-3000, (this is not a toll-free number) for copies of the proposed forms and other available information.
The Department is submitting the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond; including the use of appropriate automated collection techniques or other forms of information technology,
This Notice also lists the following information:
Form HUD-92023 is to request final endorsement of the credit instrument by the Department. It is completed by the mortgagee to indicate the schedule of advances made on the project and the final advance to be disbursed immediately upon final endorsement. The reverse side of the form provides for certifications by the mortgagor and the general contractor that there will not be any outstanding unpaid obligations following receipt of the final advance of mortgage proceeds, except such obligations as may be approved by the Commissioner as to term, form and amount.
The Paperwork Reduction Act of 1995, 44 U.S.C., Chapter 35, as amended.
Office of the President of the Government National Mortgage Association (Ginnie Mae), HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Comments Due Date: November 6, 2000.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Sonya Suarez, Government National Mortgage Association, Office of Policy, Planning and Risk Management, Department of Housing & Urban Development, 451—7th Street, SW, Room 6226, Washington, DC 20410.
Sonya Suarez, Ginnie Mae, (202) 708-2772 (this is not a toll-free number), for copies of the proposed forms and other available documents.
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
Through this Notice, the Department is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the
This Notice also lists the following information:
Estimation of total number of hours needed to prepare the information collection is based on the number of respondents multiplied by the frequency of responses.
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
U.S. Fish and Wildlife Service, Department of the Interior.
Notice of intent to prepare an Environmental Impact Statement (EIS) and notice of public scoping meetings related to the SDCP.
Pursuant to the National Environmental Policy Act (NEPA), this notice advises the public that the U.S. Fish and Wildlife Service (Service) intends to prepare an EIS to evaluate the impacts of and alternatives for the possible issuing an incidental take permit, pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act), to Pima County. Pima County proposes to be an applicant for an incidental take permit, through development and implementation of the Sonoran Desert Conservation Plan (SDCP), which will serve as a habitat conservation plan, as required by the Act for issuance of an incidental take permit. The SDCP will provide the measures to minimize and mitigate the effects of the proposed taking on listed and sensitive species and the habitats upon which they depend.
Written comments on conservation alternatives and issues to be addressed in the EIS are requested by October 23, 2000, and should be sent to Mr. David Harlow, Field Supervisor, U.S. Fish and Wildlife Service, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ, 85021 at 602/640-2720. Oral and written comments will also be accepted at the public scoping meetings to be held at the following locations:
For the information of the general public, names and addresses of anyone who comments may and can be disclosed under the Freedom of Information Act.
This notice advises the public that the Service intends to gather information necessary to determine impacts and formulate alternatives for an EIS related to the potential issuance of an incidental take permit to Pima County, Arizona, and the development and implementation of the SDCP, which will provide measures to minimize and mitigate the effects of the incidental take of federally listed species.
Pima County, Arizona, is home to over 800,000 residents, and the population is expected to reach 1.2 million by the year 2020. The Pima County Board of Supervisors is responsible for the protection of those lands in unincorporated Pima County that are of environmental, cultural, or historic importance. Given Pima County's rapid growth rate, Pima County has recognized the need to balance economic, environmental, and human interests by implementing a regional ecosystem-based multi-species conservation program.
Section 9 of the Act prohibits the “taking” of threatened and endangered species. The Service may, however, under limited circumstances, issue permits to take federally listed and candidate species, incidental to, and not the purpose of, otherwise lawful activities. Regulations governing permits for endangered species are at 50 CFR 17.22. The term “take” under the Act means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. The proposed permit would allow approved incidental take outside of proposed preserve lands within the proposed permit boundaries.
Section 10(a)(1)(B) of the Act and regulations at 50 CFR 17.32, contain provisions for issuing incidental take permits to non-federal entities for the take of endangered and threatened species, provided the following criteria are met:
1. The taking will be incidental;
2. The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking;
3. The applicant will ensure that adequate funding for the Plan will be provided;
4. The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and
5. Any other measures that the Service may require as being necessary
The proposed action is the issuance of an incidental take permit for listed and sensitive species in Pima County, pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended. Pima County will develop and implement the SDCP, which will serve as a habitat conservation plan, as required by section 10(a)(1)(B) of the Endangered Species Act. The SDCP will provide measures to minimize and mitigate the effects of the taking on listed and sensitive species and their habitats. The biological goal of the SDCP is to ensure the long-term survival of the full spectrum of plants and animals that are indigenous to Pima County through maintaining or improving the habitat conditions and ecosystem functions necessary for their survival.
Activities proposed for coverage under the incidental take permit include lawful activities that would occur outside the proposed preserve, and include, but are not limited to, maintenance of county operations, implementation of capital improvement projects, and issuance of land use related permits, including those for development.
Pima County is expected to apply for an incidental take permit for the following federally listed species (proposed covered species): the lesser long-nosed bat (
Pima pineapple cactus (
The purpose of and need for the EIS and proposed SDCP are:(1) to ensure the long-term survival of the full spectrum of plants and animals that are indigenous to Pima County, through maintaining or improving the habitat conditions and ecosystems necessary for their survival; and, (2) to provide the framework for a combination of actions to protect and enhance the natural environment through comprehensive, long-range planning. This will ensure that the County's natural and urban environments not only can coexist, but also can develop an interdependent relationship with one another, thus guiding already approved public bond investments and conservation and preservation actions, defining Federal program and funding priorities, and establishing a regional preference for the expenditure of State funds to preserve and protect State Trust lands threatened by urbanization. The Sonoran Desert Conservation Plan contains the following six elements: (1) Ranch conservation, (2) historic and cultural preservation, (3) riparian restoration, (4) mountain parks, (5) habitat, biological and ecological corridor conservation, and (6) critical and sensitive habitat preservation.
In October of 1998 a draft Sonoran Desert Conservation Concept Plan was proposed by Pima County. During a three-month comment period, nearly 200 written responses were received. The SDCP was adopted in concept by Pima County in March of 1999 to frame future regional conservation planning. An 84 member Steering Committee and numerous technical teams were formed.
It was also agreed to pursue an ecosystem-based approach to developing the SDCP for interim and long-term compliance with applicable endangered species and environmental laws and to implement conservation and protection measures for species and habitats covered in the SDCP.
It is anticipated that Pima County will request permit coverage for a period of 30-50 years. Implementation of the SDCP will result in the establishment of a preserve system that will provide for the conservation of covered species and their habitats in perpetuity. Research and monitoring, in combination with adaptive management, will be used to facilitate accomplishment of these goals.
The proposed action and alternatives to be analyzed in the EIS will be assessed against a No Action/No Project alternative, which assumes that some or all of the current and future projects proposed in Pima County would be implemented individually, one at a time, and be in compliance with the ESA. The No Action/No Project alternative implies that the impacts from these potential projects on sensitive species and habitats would be evaluated and mitigated on a project-by-project basis, as is currently the case. Individual ESA Section 10(a) permits would be required for any activities involving take of federally listed species due to non-federal projects/actions. Without a coordinated, comprehensive, ecosystem-based conservation approach for the region, listed species may not be adequately addressed by individual project-specific mitigation requirements, unlisted candidate and sensitive species would not receive proactive actions intended to benefit them and prevent their listing, and project-specific mitigation would be less cost effective and piecemeal and would not help Federal and non-federal agencies work toward recovery of listed species.
The Service will conduct an environmental review that analyzes the proposed action, as well as a range of reasonable alternatives and the associated impacts of each. The EIS will be the basis for the Service's evaluation of impacts to the species and to the environment, and the range of alternatives to be addressed. The EIS is expected to provide biological descriptions of species and habitats and socioeconomic effects of the proposed action to be affected by the SDCP.
Comments and suggestions are invited from all interested parties to ensure that a range of issues and alternatives related to the proposed action are identified. The review of this project will be conducted according to the requirements of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
After the environmental review is completed, the Service will publish a notice of availability and a request for comment on the draft EIS and Pima County's permit application, which will include the SDCP.
The draft EIS is expected to be completed by December, 2002.
Bureau of Land Management, Interior.
Arizona Resource Advisory Council Meeting notice.
This notice announces a meeting of the Arizona Resource Advisory Council (RAC). The meeting will be held on October 4, in Phoenix, Arizona. The RAC meeting will begin at 9 a.m. and will conclude at approximately 4 p.m. The agenda items to be covered include the review of the March 31, May 11, and August 4, 2000, meeting minutes; BLM State Director's Update on legislation, regulations and statewide planning efforts; New RAC Member Introductions; Wilderness Area Access Regulations; Update on Undocumented Immigrants and the Impacts to the San Pedro Riparian National Conservation Area; RAC Discussion of Rangeland Resource Teams' Progress; Update Proposed Field Office Rangeland Resource Teams; Reports from BLM Field Office Managers; Reports by the Standards and Guidelines, Recreation and Public Relations, Wild Horse and Burro Working Groups; Reports from RAC members; and Discussion of future meetings. A public comment period will be provided at 11:30 a.m. on October 3, 2000, for any interested publics who wish to address the Council.
Deborah Stevens, Bureau of Land Management, Arizona State Office, 222 North Central Avenue, Phoenix, Arizona 85004-2203, (602) 417-9215.
Bureau of Land Management, Interior.
Public land order.
This order partially revokes an Executive order and a public land order insofar as they affect 753.38 acres of public lands withdrawn for the protection of oil shale values. This order also partially revokes the Executive order establishing Naval Oil Shale Reserve No. 3 insofar as it affects 73.38 acres of public land. These revocations will allow for disposal of the lands by exchange. The lands have been and will remain open to mineral leasing. The lands continue to be segregated by an overlapping exchange proposal.
October 10, 2000.
Doris E. Chelius, BLM Colorado State Office, 2850 Youngfield Street, Lakewood, Colorado 80215-7093, 303-239-3706.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714 (1994), it is ordered as follows:
1. Executive Order No. 5327 and Public Land Order No. 4522, which withdrew oil shale deposits and the lands containing such deposits for the protection of oil shale and associated values, are hereby revoked insofar as they affect the following described public land:
2. The Executive Order dated September 27, 1924, which established Naval Oil Shale Reserve No. 3, is hereby revoked insofar as it affects the following described public lands:
3. At 9 a.m. on October 10, 2000, the lands described in Paragraphs l and 2, will be opened to the operation of the public land laws generally, subject to valid existing rights, the provisions of existing withdrawals, other segregations of record, and the requirements of applicable law. All valid applications received at or prior to 9 a.m. on October 10, 2000, shall be considered as simultaneously filed at that time. Those received thereafter shall be considered in the order of filing.
Office of Surface Mining Reclamation and Enforcement.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSM) is announcing its intention to request approval for the collection of information under 30 CFR Part 769, Petition process for designation of federal lands as unsuitable for all or certain types of surface coal mining operations and for termination of previous designations. The collection described below has been forwarded to the Office of Management and Budget (OMB) for review and comment. The information collection request describes the nature of the information collection and the expected burden and cost.
OMB has up to 60 days to approve or disapprove the information
To request a copy of the information collection request, explanatory information and related form, contact John A. Trelease at (202) 208-2783, or electronically to jtreleas@osmre.gov.
The Office of Management and Budget (OMB) regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d)). OSM has submitted a request to OMB to approve the collection of information in 30 CFR part 769, Petition process for designation of Federal lands as unsuitable for all or certain types of surface coal mining operations and for termination of previous designations. OSM is requesting a 3-year term of approval for this information collection activity.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control number of this collection of information is 1029-0098.
As required under 5 CFR 1320.8(d), a
Send comments on the need for the collection of information for the performance of the functions of the agency; the accuracy of the agency's burden estimates; ways to enhance the quality, utility and clarity of the information collection; and ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information, to the following addresses. Please refer to the appropriate OMB control number in all correspondence.
Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Department of Interior Desk Officer, 725 17th Street, NW., Washington, DC 20503. Also, please send a copy of your comments to John A. Trelease, Office of Surface Mining Reclamation and Enforcement, 1951 Constitution Ave, NW., Room 210—SIB, Washington, DC 20240, or electronically to jtreleas@osmre.gov.
Office of Surface Mining Reclamation and Enforcement.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSM) is announcing its intention to request approval for the collection of information for Requirements for Permits and Permit Processing, 30 CFR Part 773. The collection described below has been forwarded to the Office of Management and Budget (OMB) for review and comment. The information collection request describes the nature of the information collection and the expected burden and cost.
OMB has up to 60 days to approve or disapprove the information collection but may respond after 30 days. Therefore, public comments should be submitted to OMB by October 10, 2000, to be assured of consideration.
To request a copy of the information collection request, explanatory information and related form, contact John A. Trelease at (202) 208-2783, or electronically to jtreleas@osmere.gov.
The Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. OSM has submitted a request to OMB to approve the collection of information for Requirements for Permits and Permit Processing, 30 CFR Part 773. OSM is requesting a 3-year term of approval for this information collection activity.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control number for this collection of information is 1029-0041.
As required under 5 CFR 1320.8(d), a
Send comments on the need for the collection of information for the performance of the functions of the agency; the accuracy of the agency's burden estimates; ways to enhance the quality, utility and clarity of the information collection; and ways to
Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Department of Interior Desk Officer, 725 17th Street, NW, Washington, DC 20503. Also, please send a copy of your comments to John A. Trelease, Office of Surface Mining Reclamation and Enforcement, 1951 Constitution Ave, NW, Room 210-SIB, Washington, DC 20240, or electronically to jtreleas@osmre.gov.
Tuesday, September 19, 2000, 1:00 PM (Open Portion); 1:30 PM (Closed Portion).
Offices of the Corporation, Twelfth Floor Board Room, 1100 New York Avenue, N.W., Washington, D.C.
Meeting OPEN to the Public from 1:00 PM to 1:30 PM Closed portion will commence at 1:30 PM (approx.)
(Closed to the Public 1:30 PM)
Information on the meeting may be obtained from Connie M. Downs at (202) 336-8438.
On the basis of the information in the investigation, the Commission determines,
Following receipt of a petition filed on behalf of the Blue Crab Coalition, the Commission, effective March 2, 2000, instituted investigation No. TA-201-71, Crabmeat from Swimming Crabs, under section 202 of the Trade Act of 1974 to determine whether crabmeat from swimming crabs is being imported into the United States in such increased quantities as to be a substantial cause of serious injury, or the threat thereof, to the domestic industry producing an article like or directly competitive with the imported article.
Notice of the institution of the Commission's investigation and of the scheduling of public hearings to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determination in this investigation to the President on August 29, 2000. The views of the Commission are contained in USITC Publication 3349 (August 2000), entitled Crabmeat from Swimming Crabs: Investigation No. TA-201-71.
By order of the Commission.
On the basis of the record
On July 17, 2000, a petition was filed with the Commission and the Department of Commerce by Cummins-Allison Corp., Mt. Prospect, IL, alleging
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determinations in these investigations to the Secretary of Commerce on August 31, 2000. The views of the Commission are contained in USITC Publication 3348 (September 2000), entitled Desktop Note Counters and Scanners from China, Korea, and the United Kingdom: Investigations Nos. 731-TA-885-887 (Preliminary).
By order of the Commission.
Notice of Information Collection Under Review; Extension of a currently approved collection.
The Department of Justice, Office of Community Oriented Policing Services has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. Office of Management and Budget approval is being sought for the information collection listed below. This proposed information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comment until October 10, 2000. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the COPS Office, PPSE Division, 1100 Vermont Ave., NW., Washington, DC 20530-0001; attn: Karen Beckman. Additionally, Comments may be submitted to COPS via facsimile to 202-633-1386, attn: Karen Beckman. Comments may also be submitted to the Department of Justice (DOJ), Justice Management Division, Information Management and Security Staff, Attention: Department Deputy Clearance Officer, National Place, Suite 1220, 1331 Pennsylvania Avenue, NW., Washington, DC, 20530.
Written comments and suggestions from the public and affected agencies should address one or more of the following points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency/component, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
The COPS office will use the information collected to identify the information necessary for police executives to effectively utilize resources as it relates to problem-solving and to examine existing problem-oriented policing tracking systems for the purpose of identifying best practices in problem-solving management. Data from the surveys will be used to produce a final Problem-Solving Knowledge Management Model. A brochure and video of the Problem-Solving Model will assist agencies in problem prioritization, and the allocation of resources in support of problem-oriented policing.
(5)
(6)
Public comment on this proposed information collection is strongly encouraged.
Department of Justice, Department of the Treasury, and Office of Management and Budget.
Extension of deadline for public comments.
On July 31, 2000, the Department of Justice, Department of Treasury, and Office of Management and Budget published a notice in the
The revised deadline for the submission of public comments in response to the Study is September 22, 2000.
All submissions must be in writing or in electronic from. Written submissions should be sent to Leander Barnhill, Office of General Counsel, Executive Office for United States Trustees, 901 E Street, NW, Suite 780, Washington DC 20530. Electronic submissions should be sent by email to
Office of the Secretary, Labor.
Notice.
The U.S. National Administrative Office (NAO) gives notice that on September 1, 2000, U.S. Submission #2000-01 was accepted for review. The submission was filed with the NAO on July 3, 2000, by Current and Former Workers at Auto Trim and Custom Trim/Breed Mexicana, the Coalition for Justice in the Maquiladoras, and 22 additional unions and nongovernmental organizations in Canada, Mexico, and the United States. The submission raises concerns about occupational safety and health and compensation in cases of occupational injuries and illnesses at Auto Trim of Mexico in Matamoros, Tamaulipas, and at Custom Trim/Breed Mexicana in Valle Hermoso, Tamaulipas.
Article 16(3) of the North American Agreement on Labor Cooperation (NAALC) provides for the review of labor law matters in Canada and Mexico by the NAO. The objectives of the review of the submission will be to gather information to assist the NAO to better understand and publicly report on the Government of Mexico's compliance with the obligations set forth in the NAALC.
September 1, 2000.
Lewis Karesh, Acting Secretary, U.S. National Administrative Office, Department of Labor, 200 Constitution Avenue, NW, Room C-4327, Washington, DC 20210. Telephone: (202) 501-6653 (this is not a toll-free number).
On July 3, 2000, U.S. Submission #2000-01 was filed by Current and Former Workers at Auto Trim and Custom Trim/Breed Mexicana, the Coalition for Justice in the Maquiladoras, and 22 additional unions and nongovernmental organizations in Canada, Mexico, and the United States. The submission raises concerns about occupational safety and health and compensation in cases of occupational injuries and illnesses at Auto Trim of Mexico in Matamoros, Tamaulipas, and at Custom Trim/Breed Mexicana in Valle Hermoso, Tamaulipas.
The submitters allege that workers at both plants suffer illnesses and injuries related to exposure to toxic substances and muscular-skeletal disorders caused by poor ergonomics. The submitters also maintain that illnesses and injuries are often unreported or under-reported and inadequately treated and compensated. The submitters allege that the frequency with which these problems occur is due to the Mexican government's persistent failure to enforce occupational safety and health laws and regulations with regard to the two firms. They assert that the Mexican government is in violation of NAALC Article 3(1)(b) in failing to monitor compliance and investigate suspected violations; Article 3(1)(d) in failing to require record-keeping and reporting; Article 3(1)(g) in failing to initiate proceedings in a timely manner to seek appropriate sanctions or remedies for violation of labor law; Article 4(1) in failing to guarantee an individual's access to relevant tribunals for the enforcement of its labor law; Article 5(1) in failing to ensure that all proceedings for the enforcement of labor law are fair, equitable, and transparent, comply with due process of law, are open to the public, and are not unnecessarily complicated or involve unwarranted delays; Article 7(a) in failing to ensure that public information is available related to its labor law and enforcement and compliance procedures; and Article 7(b) in failing to promote public education regarding its labor law.
In addition, the submitters charge that the Mexican government has shown disregard for the principles set out in the preamble to the NAALC. Paragraph 1 of the preamble, for example, refers to the parties' resolve in enacting NAFTA to protect, enhance, and enforce basic workers' rights. In Paragraph 7, the parties resolve to promote high-skill, high productivity economic development in North America by inter alia, encouraging employers and employees in each country to comply with labor laws and to work together in maintaining a progressive, safe, and healthy working environment.
The procedural guidelines for the NAO, published in the
U.S. Submission #2000-01 relates to labor law matters in Mexico. A review would appear to further the objectives of the NAALC, as set out in Article 1 of the NAALC, among them improving
Accordingly, this submission has been accepted for review of the allegations raised therein. The NAO's decision is not intended to indicate any determination as to the validity or accuracy of the allegations contained in the submission. The objectives of the review will be to gather information to assist the NAO to better understand and publicly report on the issues of occupational safety and health and compensation in cases of occupational illnesses and injuries raised in the submission, including the Government of Mexico's compliance with the obligations agreed to under Articles 3, 4, 5, and 7 of the NAALC. The review will be completed, and a public report issued, within 120 days, or 180 days if circumstances require an extension of time, as set out in the procedural guidelines of the NAO.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C.. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
Submit comments on or before November 6, 2000.
Send comments to Brenda C. Teaster, Acting Chief, Records Management Division, 4015 Wilson Boulevard, Room 709A, Arlington, VA 22203-1984. Commenters are encouraged to send their comments on a computer disk, or via Internet E-mail to bteaster@msha.gov, along with an original printed copy. Ms. Teaster can be reached at (703) 235-1470 (voice), or (703) 235-1563 (facsimile).
Brenda C. Teaster, Acting Chief, Records Management Division, U.S. Department of Labor, Mine Safety and Health Administration, Room 709A, 4015 Wilson Boulevard, Arlington, VA 22203-1984. Ms. Teaster can be reached at bteaster@msha.gov (Internet E-mail), (703) 235-1470 (voice), or (703) 235-1563 (facsimile).
MSHA evaluates and approved explosive materials and blasting units as permissible for use in the mining industry. However, since there are no permissible explosives or blasting units available that have adequate blasting capacity for some metal and nonmetal gassy mines, Standard 57.22606(a) was promulgated to provide procedures for mine operators to follow for the use of non-approved explosive materials and blasting units. Mine operators must notify MSHA in writing, of all non-approved explosive materials and blasting units to be used prior to their use. MSHA evaluates the non-approved explosive materials and determines if they are safe for blasting in a potentially gassy environment.
Currently, the Mine Safety and Health Administration (MSHA) is soliciting comments concerning the proposed extension of the information collection related to the Explosive Materials and Blasting Units. MSHA is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechnical, or other technological collection techniques or other forms of information technology,
A copy of the proposed information collection request may be viewed on the Internet by accessing the MSHA Home Page (
MSHA uses the information to determine that the explosives and procedures to be used are safe for blasting in a gassy underground mine. Federal inspectors use the notification to ensure that safe procedures are followed.
Comments submitted in response to this notice will be summarized and included in the request for Office of Management and Budget approval of the information collection request. They will also become a matter of public record.
Pension and Welfare Benefits Administration, Labor.
Notice of proposed exemptions.
This document contains notices of pendency before the Department of Labor (the Department) of proposed exemptions from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (the Act) and/or the Internal Revenue Code of 1986 (the Code).
All interested persons are invited to submit written comments or request for a hearing on the pending exemptions, unless otherwise stated in the Notice of Proposed Exemption, within 45 days from the date of publication of this Federal Register Notice. Comments and requests for a hearing should state: (1) The name, address, and telephone number of the person making the comment or request, and (2) the nature of the person's interest in the exemption and the manner in which the person would be adversely affected by the exemption. A request for a hearing must also state the issues to be addressed and include a general description of the evidence to be presented at the hearing.
All written comments and request for a hearing (at least three copies) should be sent to the Pension and Welfare Benefits Administration, Office of Exemption Determinations, Room N-5649, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, D.C. 20210. Attention: Application No. ___, stated in each Notice of Proposed Exemption. The applications for exemption and the comments received will be available for public inspection in the Public Documents Room of the Pension and Welfare Benefits Administration, U.S. Department of Labor, Room N-5638, 200 Constitution Avenue, NW., Washington, DC 20210.
Notice of the proposed exemptions will be provided to all interested persons in the manner agreed upon by the applicant and the Department within 15 days of the date of publication in the
The proposed exemptions were requested in applications filed pursuant to section 408(a) of the Act and/or section 4975(c)(2) of the Code, and in accordance with procedures set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990). Effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type requested to the Secretary of Labor. Therefore, these notices of proposed exemption are issued solely by the Department.
The applications contain representations with regard to the proposed exemptions which are summarized below. Interested persons are referred to the applications on file with the Department for a complete statement of the facts and representations.
The Department is considering granting an exemption under the authority of section 408(a) of the Act and 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, 32847, August 10, 1990). If the exemption is granted, the restrictions of 406(a) and 406(b)(1), 406(b)(2), and 406(b)(3) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (F) of the Code, shall not apply to: (a) the receipt by certain affiliates and predecessors of Journal Register East, Inc. (JRE), by Boatmen's Trust Company (the Bank), and by certain individuals alleged in a complaint to have been or to be fiduciaries of the Plan (collectively, the Defendants) of releases signed by participants in the Plan, in which such participants waive their rights to sue in connection with the acquisition and retention in such participants' accounts in the Plan of interests in certain guaranteed investment contracts (GICs) issued by Confederation Life Insurance Company (CLI); and (b) the payment by the corporate Defendants of a settlement amount to be allocated to the accounts of participants in the Plan in exchange for release from liability obtained from such participants; provided that the following conditions are satisfied:
(a) The payment of the settlement amount is a one-time cash transaction;
(b) Each participant whose account in the Plan has an interest in the GICs decides whether, in exchange for the settlement amount, to waive his or her right to sue in connection with the acquisition and retention in such participant's account in the Plan of interests in such GICs; or to opt out of such settlement and retain all such rights and causes of action;
(c) Pursuant to the terms of the settlement, the account of each participant in the Plan who waives his or her right to sue receives an amount of the settlement proceeds in proportion to the interest each such account has in the GICs;
(d) Pursuant to the terms of the settlement, the corporate Defendants are responsible for paying the attorneys' fees to the law firm representing the plaintiffs (the Plaintiffs);
(e) A portion of the fees that would have been due and payable to the Plaintiffs' attorneys will be withheld from the settlement proceeds by JRE, an employer of employees covered by the Plan, and paid to the Plaintiffs' in cash based on each Plaintiff's share of the amount of the settlement proceeds allocated to all of the Plaintiffs;
(f) Notwithstanding the waiver by any participant of his or her right to sue, the Plan does not release any claims, demands, and/or causes of action which it may have in connection with the acquisition and retention in participants' accounts in the Plan of interests in the GICs;
(g) No expenses are incurred by the Plan as a result of the settlement;
(h) The Plaintiffs' attorneys and each participant who signs the release and waives his or her right to sue will monitor the payment of the settlement proceeds by the corporate Defendants and the allocation of the proper amounts into such participants' accounts in the Plan, in order to ensure compliance with the terms of the settlement agreement; and
(i) All terms and conditions of the transaction are no less favorable than those obtainable at arm's length with unrelated third parties.
1. The applicant, JRE, is a corporation organized under the laws of the State of Delaware with its principal place of business in Trenton, New Jersey. JRE is the wholly-owned subsidiary of Journal Register Company (JRC). JRC is a publicly traded corporation engaged in the publishing business. In this regard, JRC owns and operates eighteen (18) daily newspapers and 118 non-daily publications throughout the United States.
2. In December of 1993, JRC acquired ownership of the Evening Call Publishing Company (Evening Call). At the time of the acquisition, Evening Call was the publisher of a newspaper in Woonsocket, Rhode Island, and the sponsor of the Evening Call Publishing Company Savings Plan (the Evening Call Plan).
Established in August 1985, the Evening Call Plan was a defined contribution plan in which individual accounts were established and maintained for the benefit of eligible participants. Such accounts consisted of voluntary contributions deducted from participants' wages on a pre-tax or post-tax basis with matching contributions from Evening Call. Certain employees of Evening Call served as trustees and fiduciaries of the Evening Call Plan. Either Evening Call served as plan administrator or delegated that responsibility to various individuals who held the position as publisher of the newspaper.
It is represented that the plan administrator selected CLI, as funding agent for the Evening Call Plan. At that time, CLI was a Canadian corporation doing business as an insurance company in the United States through branches in Michigan and Georgia. Further, it is represented that the plan administrator selected as investment options for the Evening Call Plan an equity fund and a guaranteed investment fund, both of which were managed by CLI. Participants in the Evening Call Plan could specify how the assets allocated to their individual accounts would be invested. In this regard, the Evening Call Plan provided that all or a portion of the assets in a participant's account could be directed into either or both investment options. The guaranteed investment fund consisted entirely of investments in one or more GICs issued by CLI.
It is represented that participants were informed that investments in the GICs, made between August 1, 1986, and July 31, 1988, were guaranteed a rate of return of 9.10% per annum, compounded through July 31, 1996. Under the terms and conditions of the GICs, participants who directed assets from their accounts in the Evening Call Plan into such GICs could not change investment options until the GICs matured in 1995 and 1996. Further, it is represented that the GICs were illiquid, and that there was no secondary market for such GICs.
3. The Journal Company, Inc. 401(k) Savings Plan (the Plan), which is the subject of this exemption, is the successor in interest to the Evening Call Plan. The Evening Call Plan was merged into the Plan in December 1993. In this regard, it is represented that the assets held by the Evening Call Plan in the form of the GICs were allocated to separate accounts for those participants in the Plan who formerly were participants in the Evening Call Plan.
JRE is the employer and sponsor of the Plan. Other participating employers in the Plan are all members of the same controlled group of corporations and include affiliates, divisions, or subsidiaries of JRE or JRC. The Plan is an individual account plan into which employees of such participating employers defer salary. It is represented that there were approximately 939 participants and beneficiaries in the Plan, as of March 31, 1999. As of June 30, 1999, the estimated fair market value of the assets in the Plan was $15,868,776.
The Bank, a Delaware corporation with principal offices in St. Louis, Missouri, served, for the period from April 1, 1994, until January 28, 1998, as trustee and administrator of the Plan. The current trustee of the Plan is Merrill Lynch Trust Co.
4. In 1994, CLI was placed in receivership. In this regard, on August 11, 1994, Canadian insurance regulatory authorities placed CLI into a liquidation and winding-up process. Further, on August 12, 1994, the insurance authorities of the State of Michigan commenced legal action to place the United States operations of CLI into rehabilitation; thereby freezing the investments in GICs held by the participants' individual accounts in the Plan. At that time, CLI proceeded to liquidate its assets under a plan of liquidation approved by the Circuit Court for the County of Ingham, Michigan. It is represented that on or about March 1997, of three (3) distribution options, the Plan selected the one which provided the most immediate payment to participants in the Plan. In April of 1997, CLI began making payments on behalf of the GICs.
It is represented that seventy-five (75) participants in the Plan had interests in the GICs in their accounts which had been frozen. In early June 1997, the Plan received notice of distribution from the estate of CLI on behalf of such participants' accounts. In July 1997, payments made by CLI were allocated to the accounts of such participants in the Plan. The application states that when the accounts were unfrozen, the participants received earnings from the CLI investment that were lower than would have been received pursuant to the terms of the GICs, if such terms had been honored by CLI.
5. On August 11, 1997, twenty-six (26) individuals filed suit in the United States District Court for the District of New Jersey against the Defendants. The Defendants listed in the complaint included the Bank, JRC, Evening Call, and Journal Register Newspaper's, Inc. (JRN), the former parent of Evening Call, and certain individuals alleged to be trustees and fiduciaries of the Evening Call Plan or members of the Board of Directors of JRC and its subsidiaries, JRN and Evening Call. Some of the individual Defendants are also participants in the Plan whose accounts now hold interests in the GICs.
All of the individual Plaintiffs were employees of Evening Call and are or were employees of JRE or its affiliates. All of the Plaintiffs are members of a single bargaining unit represented by Local 128 of the Woonsocket Newspaper Guild, AFL-CIO. The Plaintiffs were all participants in the Evening Call Plan and are participants whose accounts in the Plan hold interests in the GICs. Further, the accounts in the Plan of other participants, who are neither Plaintiffs nor Defendants, also hold interests in the GICs.
The Plaintiffs filed suit against the Defendants for breach of fiduciary duty. In this regard, the complaint alleged that the Defendants breached their fiduciary duties to the Plaintiffs by failing to exercise prudence in the selection of Plan investments, by failing to monitor the continued retention of the GICs in the Plan, by failing to disclose relevant information to the Plaintiffs with respect to the GICs on a timely basis, by failing to create and maintain a system through which participants could direct investments in their accounts consistent with section 404(c) of the Act, and by failing to adequately diversify Plan assets.
As relief, the complaint demands that the Defendants make whole the Plaintiffs' and other participants' individual accounts in the Plan from all losses and damages suffered as a result of the Defendants' breaches of fiduciary duties and violations of the Act. In addition, Plaintiffs seek pre-judgment and post-judgment interest on amounts
As of August 1999, the Defendants had not filed a formal answer to the complaint. Notwithstanding the Plaintiffs' allegations, the Defendants maintain that there was no breach of fiduciary duty involved in the decision to select or retain the GICs in the Plan or in the handling of such GICs. Rather, the Defendants argue that losses, if any, that may have occurred as a result of the Plan's holding of the GICs were inherent risks associated with the higher returns available from such an investment, and that no compensable injury occurred. Further, JRE maintains that some of the individuals named as Defendants were not, in fact, fiduciaries with respect to the issues raised in the complaint.
The applicant also represents that the Bank contends it was not a fiduciary with respect to the issues raised in the complaint. In this regard, the applicant states that the Bank was the directed trustee of the Plan until January 28, 1998, and thereafter, was not currently a directed trustee or fiduciary of the Plan. Further, it is represented that the Bank is not now a party in interest with respect to the Plan.
6. The two (2) corporate Defendants, JRC and the Bank, have proposed a settlement of the litigation with the Plaintiffs. In this regard, within fifteen (15) days of the publication of a final exemption on the subject transactions, each of the corporate Defendants proposes to deliver to the trustee of the Plan a bank or certified check representing its respective share of the settlement amount. JRC will pay $253,125, plus interest, of the settlement amount; and the Bank will pay $50,000, plus interest, of the settlement amount. The entire settlement amount in the aggregate is equal to $303,125, plus interest. Of this settlement amount, $258,125, plus interest, is allocated for payments to the accounts of participants who accept the settlement terms; and, as discussed more fully below, $45,000, plus interest, is allocated for payment of the fees of the attorneys for the Plaintiffs.
It is represented that the settlement amount was reached based on the costs and risks of litigation and represents a compromise between the conflicting positions of the Plaintiffs and Defendants. None of the individual named Defendants who are also participants in the Plan will contribute any funds toward the settlement amount. The settlement is contingent on all named Plaintiffs executing releases. It is expected that all Plaintiffs will do so, on the recommendation of their counsel.
In the proposed settlement agreement, the Defendants will specifically deny all claims and contentions alleged by the Plaintiffs and will not admit any wrongdoing or liability. Pursuant to the terms of the settlement, an escrow account will be established into which a settlement payment in the amount of $258,125, plus interest, will be deposited.
Under the proposed settlement, each Plan participant whose account has an interest in the GICs must decide whether to accept the proposed settlement, or to opt out of it and retain whatever rights and causes of actions he or she may have. Each participant who chooses to accept the proposed settlement must release all claims arising from the matters involved in the litigation. It is represented that no fiduciary of the Plan will exercise discretion or provide advice to, or otherwise assist, any other participant with respect to the decision as to whether to accept the proposed settlement.
To the extent a participant agrees to release all actual or potential claims arising out of the acquisition and holding of interests in the GICs by his or her account in the Plan, it is represented that a proportional amount of the escrow shall be paid to the Plan (in proportion to the amount each such participant's account had invested in the GICs) and that such amount shall be allocated to such participant's account under the Plan. For example, if a participant's account held a one percent (1%) interest in the GICs, that participant's account would receive one percent (1%) of the $258,125, plus interest, out of the settlement proceeds. It is represented that named Defendants whose accounts in the Plan also hold interests in the GICs by reason of such Defendants' status as plan participants will receive the same treatment as all other non-plaintiff plan participants. If a participant who signed the release does not cash the distribution check or cannot be located at the time a distribution from the individual participant accounts would be appropriate under the Plan, standard provisions of the Plan will apply. Such provisions generally provide that the plan administrator will use the appropriate “lost participant” facilities to locate the participant, and if the participant cannot be located, the assets in the individual's account will be forfeited to the Plan, subject to restoration to the individual upon location of such missing participant.
Any participants who do not sign a release will not receive an allocation into their account from the settlement proceeds. As a result, the funds that otherwise would have been allocated to such participant's account from the settlement proceeds, had the participant signed the release, will be returned to the settling Defendants.
As described above, $258,125, plus interest, of the settlement amount is allocated for payment to the accounts of participants who accept the settlement terms; and, $45,000, plus interest, is allocated for payment to the law firm representing the Plaintiffs to cover attorneys' fees and expenses in connection with the law suit. In this regard, the law firm representing the Plaintiffs has agreed to waive a portion of such attorneys' fees. It is anticipated that of the sum of $45,000, plus interest, that otherwise would have been paid out of the settlement proceeds to the attorneys of the Plaintiffs, JRE will withhold approximately $16,000, plus interest, representing the portion of such attorneys' fees that will be waived. The portion of the Plaintiffs' attorneys' fees that is waived by the Plaintiffs' attorneys will be paid by JRE to the Plaintiffs in cash, based on each Plaintiffs' share of the amount of the settlement proceeds allocated to all of the Plaintiffs. In this regard, it is represented that it is an accepted practice to reimburse individuals, such as the Plaintiffs, for the time, effort, and financial resources they expended in
7. The applicant recognizes that the proposed settlement could be deemed to be an indirect exchange between a plan and a party in interest in violation of section 406 of the Act; and accordingly, has requested administrative relief.
8. It is represented that the proposed exemption is in the best interests of the Plan and its participants, because the accounts of participants which have interests in the GICs will receive an immediate and substantial portion of the return on such GICs. In this regard, when combined with amounts already received upon the liquidation of CLI, each participant's account in the Plan will receive more than 128% of the face value of their share of the GICs, including interest earned to maturity. When frozen on August 12, 1994, the GICs were valued at approximately $1,442,113. The latest maturity date of the Plan's GICs is represented to be July 31, 1996. If allowed to mature on schedule, the value would have grown to an estimated $1,497,646. In this regard, the difference (approximately $50,000) between the value on the date of the freeze and at maturity is attributable to the fact that a substantial number of the GICs began to reach their maturity dates not long after the freeze was imposed. In July 1997, the Plan received approximately $1,620,053 from CLI, which amount was distributed to the participants' accounts in the Plan. The settlement of the litigation in 1999 will add $303,125 to that amount, resulting in an amount (ignoring lost opportunity costs) that is equal to $425,532 above the value of the GICs at maturity.
With respect to compensating the Plaintiffs for any lost opportunity, while the funds were frozen, to invest in a mix of options heavily weighted in favor of equities, it is the Defendants' position that this would give rise to a claim for more than the actual loss. In this regard, although it is now known that the stock market performed well during the freeze period, the Defendants maintain: (a) That the Plaintiffs had demonstrated risk aversion by investing in the fixed-income option offered by the GICs; and (b) that once the GICs matured the Plaintiffs would have invested their accounts in a similar fixed-income option which would have earned far less than the equity-weighted mix, as suggested by their counsel.
Further, the applicant maintains that if the proposed exemption is not granted, the litigation may not be settled, and it is not possible to determine if the Plaintiffs would be successful in pursuing their claims to a judgment. Furthermore, it is possible that those participants who are not named Plaintiffs will never be able to obtain any recovery, because the litigation is not styled as a class action, and it is likely that the statute of limitations will run on the claims of the participants who are not Plaintiffs. Even if the Plaintiffs were to be successful in their suit, any recovery would be delayed substantially, and may prove to be a lesser amount than that offered as part of the proposed settlement.
9. The requested exemption is administratively feasible because it involves a one-time payment of cash to the participants' accounts in Plan in exchange for releases of liability from such participants. In this regard, it is represented that once the settlement amounts have been distributed, no further actions are contemplated under the settlement, and no further review or monitoring will be required. Further, no expenses will be incurred by the Plan as a result of the settlement. JRE will bear the costs of the exemption application and of notifying interested persons.
10. It is represented that the proposed exemption contains sufficient safeguards for the protection of the rights of the participants and beneficiaries of the Plan. In this regard, Plaintiffs' attorneys and each participant who signs the release and waives his or her right to sue will monitor the payment of the settlement proceeds by the corporate Defendants and the allocation of the proper amounts into such participants' accounts in the Plan, in order to ensure compliance with the terms of the settlement agreement. The Plaintiffs' attorney will receive a listing of the allocation for each of the Plaintiffs and will be able to confirm that the allocation has been properly performed. Further, accompanying the notification of settlement, each participant whose account holds an interest in the GICs will receive a statement that includes a calculation of the allocation of the settlement amount and a description of how such amount was calculated. Thereafter, regular statements from the trustee will reflect the allocation of the settlement amount into the account of the Plan participants who accept the settlement terms. It is further represented that the settlement provides that any breach of the settlement agreement can be remedied by the district court judge overseeing such litigation.
11. In summary, the applicant represents that the proposed transactions will meet the statutory criteria of section 408(a) of the Act and 4975(c)(2) of the Code because:
(a) The payment of the settlement amount will be a one-time cash transaction;
(b) Each participant whose account in the Plan has an interest in the GICs will decide whether to waive his or her right to sue the Defendants in exchange for the settlement amount; or to opt out of such settlement and retain all such rights and causes of action against the Defendants;
(c) Pursuant to the terms of the settlement, the account of each participant in the Plan who waives his or her right to sue the Defendants will receive an amount of the settlement proceeds in proportion to the interest each such account has in the GICs;
(d) Pursuant to the terms of the settlement, the corporate Defendants are responsible for paying the attorneys' fees of the law firm representing the Plaintiffs;
(e) A portion of the fees that would have been due and payable to the Plaintiffs' attorneys will be withheld from the settlement proceeds by JRE, the employer, and paid to the Plaintiffs in cash based on each Plaintiff's share of the amount of the settlement proceeds allocated to all of the Plaintiffs;
(f) Notwithstanding the waiver by any participant of his or her right to sue the Defendants, the Plan will not release any claims, demands, and/or causes of action which it may have against the Defendants;
(g) No expenses will be incurred by the Plan as a result of the settlement;
(h) The Plaintiffs attorneys and each participant of the Plan who signs the release and waives his or her right to sue the Defendants shall monitor the payment of the settlement proceeds by the corporate Defendants and the allocation of the proper amounts into such participants' accounts in the Plan, in order to ensure compliance with the terms of the settlement;
(i) All terms and conditions of the transaction will be no less favorable than those obtainable at arm's length with unrelated third parties; and
(j) As a result of the settlement, the participants whose accounts hold an interest in the GICs will receive an immediately and substantial portion of the investment return guaranteed by such GICs.
Included among those persons who may be interested in the pendency of the requested exemption are all participants and beneficiaries in the Plan who have an interest in the GICs. It is represented that within ten (10) days after the publication of the Notice of Proposed Exemption (the Notice) in
Based on the facts and representations set forth in the application, the Department is considering granting an exemption under the authority of section 408(a) of the Act and in accordance with the procedures set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990).
If the exemption is granted, the restrictions of section 406(a) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (D) of the Code, shall not apply, effective March 22, 2000, to the (1) receipt of common stock (Common Shares) issued by Sun Life Financial Services of Canada, Inc., the holding company for Sun Life (the Holding Company), or (2) the receipt of cash (Cash) or policy credits (Policy Credits), by or on behalf of any eligible policyholder (the Eligible Policyholder) of Sun Life which is an employee benefit plan (the Plan), subject to applicable provisions of the Act and/or the Code, including any Eligible Policyholder which is a Plan established by Sun Life or an affiliate for their own employees (the Sun Life Plans), in exchange for such Eligible Policyholder's membership interest in Sun Life, in accordance with the terms of a plan of conversion (the Conversion Plan) adopted by Sun Life and implemented under the insurance laws of Canada and the State of Michigan.
This proposed exemption is subject to the conditions set forth below in Section II.
(a) The Conversion Plan was implemented in accordance with procedural and substantive safeguards that were imposed under the insurance laws of Canada and the State of Michigan and was subject to review and/or approval in Canada by the Office of the Superintendent of Financial Institutions (OSFI) and the Minister of Finance (the Canadian Finance Minister) and, in the State of Michigan, by the Commissioner of Insurance (the Michigan Insurance Commissioner).
(b) OSFI, the Canadian Finance Minister and the Michigan
Insurance Commissioner reviewed the terms of the options that were provided to Eligible Policyholders of Sun Life as part of their separate reviews of the Conversion Plan. In this regard,
(1) OFSI (i) authorized the release of the Conversion Plan and all information to be sent to Eligible Policyholders; (ii) oversaw each step of the conversion process (the Conversion); and (iii) made a final recommendation to the Canadian Finance Minister on the Conversion Plan.
(2) The Canadian Finance Minister, in his sole discretion, could consider such factors as whether: (i) The Conversion Plan was fair and equitable to Eligible Policyholders; (ii) whether the Conversion Plan was in the best interests of the financial system in Canada; and (iii) sufficient steps had been taken to inform Eligible Policyholders of the Conversion Plan and of the special meeting (the Special Meeting) on the Conversion.
(3) The Michigan Insurance Commissioner made a determination that the Conversion Plan was (i) fair and equitable to all Eligible Policyholders and (ii) consistent with the requirements of Michigan law.
(4) Both the Canadian Finance Minister and the Michigan Insurance Commissioner concurred on the terms of the Conversion Plan.
(c) Each Eligible Policyholder had an opportunity to vote to approve the Conversion Plan after full written disclosure was given to the Eligible Policyholder by Sun Life.
(d) One or more independent fiduciaries of a Plan that was an Eligible Policyholder received Common Shares, Cash or Policy Credits pursuant to the terms of the Conversion Plan and neither Sun Life nor any of its affiliates exercised any discretion or provided “investment advice,” as that term is defined in 29 CFR 2510.3-21(c), with respect to such acquisition.
(e) After each Eligible Policyholder was allocated 75 Common Shares, additional consideration was allocated to an Eligible Policyholder who owned an eligible policy based on an actuarial formula that took into account such factors as the total cash value, the base premium and the duration of such eligible policy. The actuarial formula was reviewed by the Canadian Finance Minister and the Michigan Insurance Commissioner.
(f) With respect to a Sun Life Plan, where the consideration was in the form of Cash or Common Shares, an independent Plan fiduciary —
(1) Determined that the Conversion Plan was in the best interest of the Sun Life Plans and their participants and beneficiaries;
(2) Voted for the Conversion Plan on behalf of the Sun Life Plans;
(3) Received either Common Shares or Cash on behalf of a Sun Life Plan;
(4) Determined that the transactions did not violate the investment objectives and policies of the Sun Life Plans;
(5) Negotiated on behalf of the contributory Sun Life Plans and determined a reasonable allocation of proceeds between Sun Life and the participants in the Sun Life Plans; and
(6) Took (and will continue to take until the proposed exemption becomes final) all actions that were (or will be) necessary and appropriate to safeguard the interests of the Sun Life Plans.
(g) All Eligible Policyholders that were Plans participated in the transactions on the same basis within their class groupings as other Eligible Policyholders that were not Plans.
(h) No Eligible Policyholder paid any brokerage commissions or fees to Sun Life or its affiliates in connection with their receipt of Common Shares or with respect to the implementation of the initial public offering (the IPO) in which an Eligible Policyholder could elect to sell such Common Shares for cash.
(i) All of Sun Life's policyholder obligations will remain in force and will not be affected by the Conversion Plan.
For purposes of this proposed exemption:
(a) The term “Sun Life” means Sun Life Assurance Company of Canada and any affiliate of Sun Life as defined in paragraph (b) of this Section III.
(b) An “affiliate” of Sun Life includes—
(1) Any person directly or indirectly through one or more intermediaries, controlling, controlled by, or under
(2) Any officer, director or partner in such person.
(c) The term “Eligible Policyholder” means a policyholder who—
(i) On January 27, 1998 (the Eligibility Day) was the owner of a voting policy;
(ii) Was the holder of a voting policy issued by Sun Life, if the policy was applied for by that person on or before the Eligibility Day and the application was received by Sun Life within a period specified by Sun Life in the Conversion Plan;
(iii) Was the holder of a voting policy, issued to the holder by Sun Life, that lapsed before Sun Life's Eligibility Day and was reinstated during the period beginning on the Eligibility Day and ending 90 days before the day on which Sun Life's Special Meeting was held; or
(iv) Was named by Sun Life in its Conversion Plan as an Eligible Policyholder under subsection 4(4) of the Conversion Regulations.
(d) The term “Policy Credit” means—
(1) For an individual or joint ordinary life insurance policy, an increase in the paid-up dividend additional cash value or dividend accumulation value;
(2) For a policy that is in force as extended term life insurance pursuant to a nonforfeiture provision of a life insurance policy, an extension of the coverage expiry date;
(3) For a policy which is a deferred annuity certificate, an increase in the deferred annuity payment; and
(5) For a policy which is an individual accumulation annuity, an increase in the account value.
1. Sun Life is an insurance company that is incorporated under the laws of Canada. Formerly, Sun Life was a mutual life insurance company that had no issued or outstanding capital stock. On March 22, 2000 (the Effective Date), Sun Life changed its business structure from a mutual life insurance company to a stock life insurance company through a process called “demutualization” (also referred to herein as the “Conversion”).
Sun Life is subject to the Insurance Companies Act of Canada (ICA). Its United States branch, which functions as a business unit through which the insurer engages in the business of insurance in the United States, is subject to the insurance laws of the State of Michigan. Sun Life maintains its headquarters at 150 King Street West, Toronto, Ontario, Canada M5H IJ9.
Sun Life, which has a Standard & Poor's rating of “AA+” and a Duff & Phelps rating of “AAA,” carries on its insurance business in Canada and internationally through its branches in the United States, the United Kingdom, Hong Kong, Bermuda and the Philippines. In addition, Sun Life carries on the business of life insurance, investment management, mutual fund management, banking, and the provision of trust services through various subsidiaries in Canada and internationally. The insurance business in which Sun Life and its international operations are engaged include the sale of various insurance products, which include individual, group life, disability and health insurance, as well as annuities and pensions.
Sun Life's principal place of business in the United States is One Sun Life Executive Park, Wellesley Hills, Massachusetts. The insurer uses Michigan as its port of entry in the United States. Consequently, the Michigan Department of Insurance (the Michigan Insurance Department) has the principal insurance regulatory authority over Sun Life in the United States.
2. Sun Life and its affiliates provide a variety of fiduciary and other services to pension and welfare plans that are covered under relevant provisions of the Act and/or the Code. These services include, but are not limited to, investment management and contract administrative services, such as the payment of benefits and the preparation of reports and schedules as required by law. By providing these services, Sun Life may be considered a party in interest with respect to such Plans under section 3(14)(A) and (B) of the Act or other related provisions of section 3(14).
3. Sun Life sponsors several Plans which received distributions in the Conversion that were allocated to Plan participants. These Plans are referred to collectively as “the Sun Life Plans” and are described below.
(a)
(b)
(c)
4. As a mutual insurer, Sun Life had no stockholders. However, certain of its policyholders were considered owners of the company. In this capacity, the policyholders had certain rights, including the right to elect directors of the company. These membership interests are referred to herein as “Ownership Interests.”
In November 1998, a bill was introduced in the Canadian Parliament to amend the ICA to set forth the statutory rules that for the first time would allow the demutualization of Canadian mutual life insurance companies with assets in Canada of CDN$7.5 billion or more. When the bill was introduced, the Canadian Department of Finance reported that Canada's four largest mutual life insurance companies already had announced their intention to develop demutualization plans.
The Canadian Department of Finance released Mutual Company (Life Insurance) Conversion Regulations (the Conversion Regulations), which became effective on March 12, 1999 and which implemented the new legislation. On January 27, 1998, Sun Life issued a press release stating that its Board of Directors had requested Sun Life's management to develop a plan to convert Sun Life from a mutual life insurance company to a publicly-traded stock company.
5. The principal purpose of the Conversion was to create a corporate structure that would allow Sun Life to position itself for long-term growth and increased financial strength in ways that were not then available. Sun Life believed that as a result of the flexibility to be offered by the stock company structure and the access to capital markets, it would be in a position to enhance its market leadership, financial strength and strategic position. In addition, Sun Life believed that it would be able to pursue opportunities for growth, thereby providing greater protection to policyholders.
As a result of the Conversion, Sun Life became a stock insurer and a subsidiary of Sun Life Financial Services of Canada, Inc., a newly-formed holding company. In addition, the Conversion provided economic value to Eligible Policyholders in the form of Common Shares (which are traded on the Toronto, New York, London and Philippines stock exchanges),
6. Therefore, Sun Life requests a retroactive administrative exemption from the Department that would apply, effective March 22, 2000, to the receipt of Common Shares, Policy Credits or Cash by Eligible Policyholders which are Plans, including the Sun Life Plans identified above, in exchange for their mutual membership interests in Sun Life. To represent the interests of the Sun Life Plans with respect to the Conversion, Sun Life has retained U.S. Trust Company, N.A. (U.S. Trust) to serve as the independent Plan fiduciary.
The Department notes that no opinion is being provided herein regarding whether the receipt of Common Shares by the Retirement Plan, once U.S. Trust made the election, was covered by the statutory exemption provided under section 408(e) of the Act.
The proposed exemption includes a requirement that all Eligible Policyholders that were Plans participated in the transactions on the same basis within their class groupings as other Eligible Policyholders that were not Plans. Thus, Sun Life did not treat Plan policyholders any differently from non-Plan policyholders within their respective class groupings.
7. The various steps of the Conversion were subject to the approval of Sun Life's Board of Directors, OSFI, which had oversight responsibility for the entire conversion process, the Canadian Finance Minister, the Michigan Insurance Commissioner, and other regulatory authorities in Canada, the United Kingdom, Hong Kong, and the Philippines (collectively referred to as the Regulators). In pertinent part, the Conversion Regulations require that the conversion of a mutual life insurance company be implemented in accordance with a detailed proposal that sets forth the terms and means of effecting the Conversion.
In accordance with this requirement, Sun Life's Board of Directors adopted the Conversion Plan on September 28, 1999. A draft of the Conversion Plan was submitted to OSFI, as principal Regulator, along with certain specified information, including, among other things, opinions of Sun Life's actuary and an independent actuary and opinions of a valuation expert and a financial market expert.
After reviewing and commenting on the Conversion Plan, OSFI authorized Sun Life to send approximately one million Eligible Policyholders (of which less than one percent were Plans) notice of the Special Meeting to consider the Conversion Plan. Policyholder Information Statements were mailed to Eligible Policyholders on October 20, 1999. Eligible Policyholders voted in favor of the Conversion Plan at the Special Meeting which was convened on December 15, 1999 in Toronto, Ontario, Canada. Each Eligible Member was entitled to cast one vote. Because the Conversion Plan was approved by the Eligible Policyholders at the Special Meeting,
It should be noted that Canadian law does not require that the Canadian Finance Minister make any particular findings in deciding whether to approve the Conversion Plan. Therefore, approval was entirely within the discretion of the Canadian Finance Minister. However, the Canadian Finance Minister, in deciding whether to approve the Conversion Plan, could consider such factors as: (a) Whether the Conversion Plan was fair and equitable to policyholders; (b) whether the Conversion Plan was in the best interest of the financial system in Canada; and (c) whether sufficient steps had been taken to inform policyholders of the Conversion Plan and of the special meeting on the Conversion.
8. Because Sun Life operates in the United States through its U.S. branch under the Michigan state of entry statute, the demutualization law of Michigan (the Michigan Demutualization Law) also applied to Sun Life's proposed Conversion. The Michigan Demutualization Law's requirements are similar to those of the ICA and the Conversion Regulations. Among other things, the statute requires that the Conversion Plan be submitted to the Michigan Insurance Commissioner prior to a vote by Sun Life's Eligible Policyholders. In addition, the Conversion Plan cannot become effective without the approval of the Michigan Insurance Commissioner following a public hearing, and such Conversion Plan cannot be amended without the prior approval of the Michigan Insurance Commissioner.
The Michigan Insurance Commissioner is authorized to retain, and did subsequently retain, independent legal and actuarial advisers to assist in reviewing the proposal. Under the Michigan Demutualization Law, the Michigan Insurance Commissioner must approve or disapprove the Conversion Plan within 90 days after its submission, and cannot approve it unless he or she finds the Conversion Plan “does not prejudice the interests of its members, is fair and equitable, and is not inconsistent with the purpose and intent of the Michigan Demutualization Law.” If approved, the Conversion would take effect as of the Effective Date specified in the Conversion Plan (
On November 22, 1999, a public hearing was held with respect to the Conversion Plan in Lansing, Michigan. On December 8, 1999, the Michigan
9. As noted above, the Conversion Plan provided for Sun Life to demutualize and convert to a stock life insurance company pursuant to section 237
At the Effective Date of the Conversion, Section 2.2 of the Conversion Plan provides for the following transactions, which among others, took place as part of the Conversion:
• All policyholder rights with respect to, and interests in, Sun Life ceased;
• Sun Life issued its common shares to the Holding Company;
• The Holding Company issued its Common Shares to Eligible Policyholders who were issued such shares in exchange for their Ownership Interests and other Eligible Policyholders received Policy Credits or Cash in accordance with Article 4 of the Conversion Plan; and
• Sun Life surrendered to the Holding Company, and the Holding Company purchased for cancellation, for consideration equal to the initial issue price thereof, all of the Common Shares Sun Life held immediately before the Effective Date.
10. The applicant represents that the Conversion did not (and will not) affect the terms of any of Sun Life's policies. Rather, all policies will continue in force with Sun Life in accordance with their current terms notwithstanding the Conversion. In particular, the Conversion will not affect the level of premiums, coverage or benefits payable under any Policies, and dividends will continue to be declared with respect to participating policies at the discretion of Sun Life's Board of Directors. Accordingly, the Conversion will not adversely affect the contractual rights of any participating policyholder. However, all policyholder rights with respect to, and interests in, Sun Life as a mutual company ceased upon the Conversion.
In connection with the Conversion, Eligible Policyholders became entitled to their benefits (in whatever form) on the Effective Date (
11. Specifically, Policy Credits were posted to each Eligible Policyholder in the United States whose participating policy was—
• An individual retirement annuity contract within the meaning of section 408(b) [of the Code] or a tax sheltered annuity contract within the meaning of section 403(b) of the Code, including for this purpose, custodial accounts under section 403(b)(7) and retirement income accounts under section 403(b)(9);
• An individual annuity contract that had been issued directly to the Plan participant pursuant to a Plan qualified under section 401(a) of the Code or pursuant to a Plan described in section 403(a) [of the Code] directly to the Plan participant; or
• An individual life insurance Policy that had been issued directly to the Plan participant pursuant to a Plan qualified under section 401(a) [of the Code];
Notwithstanding the above, Common Shares were paid to policyholders of individual annuity contracts who were in pay status or whose policies had been terminated and the payment of Common Shares would not raise qualification issues under the Code. Similarly, Common Shares were paid in connection with individual retirement annuities covered under section 408(b) of the Code where the receipt of Common Shares would also not raise qualification issues under the Code.
Finally, the Holding Company made a direct cash payment to each Eligible Policyholder who would be subject to a mandatory cash-out, if Sun Life knew that the policyholder's Participating Policy was subject to a lien or to a bankruptcy proceeding or to certain other title restrictions.
12. Eligible Policyholders whose addresses are unknown to the Holding Company have been classified as “Lost Policyholders.” Lost Policyholders who have been issued Common Shares in connection with the Conversion will have such shares recorded in their names on the Holding Company's share register. Common Shares issued to a Lost Policyholder who do not take certain specified actions
13. About 40 percent of Sun Life's Eligible Policyholders were Canadian residents, 15 percent were U.S. residents, and 45 percent were residents of other countries. While United States residents would comprise roughly 15 percent of the total number of Eligible Policyholders, such policyholders would receive approximately 25 percent of the total Common Shares distributed in Sun Life's Conversion.
14. As required by the Conversion Regulations, the Conversion Plan was accompanied by an opinion prepared by the actuary for Sun Life and an opinion prepared by an independent actuary that the allocation of benefits to Eligible Policyholders in the Conversion was fair and equitable. Eligible Policyholders who were issued Common Shares in the Conversion could elect, by February 16, 2000, to have some or all of those shares (the Electing Shares) sold for cash in the
A total of 143,602,914 Common Shares were sold in the IPO.
In general, it is the Department's view that, if an insurance policy (including an annuity contract) is purchased with assets of an employee benefit plan, including participant contributions, and if there exist any participants covered under the plan (as defined at 29 CFR 2510.3-3) at the time when Sun Life incurred the obligation to distribute Common Shares, Cash or Policy Credits, then such consideration would constitute an asset of such plan. Under these circumstances, the appropriate plan fiduciaries must take all necessary steps to safeguard the assets of the plan in order to avoid engaging in a violation of the fiduciary responsibility provisions of the Act.
Except for a very small number of Common Shares that were sold to fund mandatory direct Cash payments (as distinguished from Cash elections), and Policy Credits, all of the Common Shares sold in the IPO represented shares allocated to Eligible Policyholders who decided to redeem their shares for Cash. (All Eligible Policyholder Cash requests were honored,
On March 31, 2000, each Underwriter exercised an “overallotment option” granted to them in their respective Underwriting Agreements. The option permitted the Underwriters to purchase an additional 21,540,437 Common Shares from the Holding Company that were equal to 15 percent of the main offering. The sale of the Common Shares closed on April 4, 2000. As a result, Canadian Eligible Policyholders received 14,001,284 Common Shares, U.S. Eligible Policyholders received 5,385,109 Common Shares and International Eligible Policyholders received 2,154,044 Common Shares.
CIBC Mellon Trust Company, or its successors or assigns, is serving as the registrar and transfer agent (the Transfer Agent) for the Common Shares. The Transfer Agent will record the Common Shares on a share register on behalf of the Holding Company. The Transfer Agent also will be responsible for transmitting dividend payments from the Holding Company to the Holding Company shareholders.
15. In addition to allowing Eligible Policyholders to sell their Electing Shares in the IPO, Sun Life has established a service, effective March 23, 2000, which affords Eligible Policyholders, including U.S. Eligible Policyholders, who hold Common Shares in their Sun Life Share Accounts, the opportunity to sell such shares after the IPO. The sales are being executed through TD Waterhouse Investor Services (TD Waterhouse), an unrelated broker-dealer. All sales through TD Waterhouse are being treated as ordinary brokerage transactions that are made at prevailing market prices on the New York Stock Exchange and are subject to TD Waterhouse's normal commission rates. Sun Life represents that no time limit has been imposed on sales of Common Shares through TD Waterhouse.
16. Following the Conversion, a participating account mechanism (the Participating Account) will be implemented by Sun Life, as provided for in the Conversion Plan. With respect to the participating policies in force at the date of the Conversion, the Participating Account will operate like a closed block. In other words, a set of assets for such policies (
With respect to Sun Life's Participating Account which operates like the closed block, an appointed actuary, who reports to OSFI, will certify that the assets placed in the Participating Account are sufficient to cover the liabilities associated with the pre- and post-demutualization participating policies, including the reasonable dividend expectations of those policyholders. Sun Life is required to place additional assets in the Participating Account, if necessary, and may transfer amounts out of such account after five years only if the appointed actuary determines that the assets are more than sufficient to cover the liabilities of the participating policies.
Under the ICA, participating policyholders also will have rights upon completion of the Conversion that are accorded to participating policyholders of a stock life insurance company in Canada. Such rights include the right to elect at least one-third of the Sun Life's Directors as well as the right to any dividends that are declared.
17. As noted above, in the case of the Sun Life Plans, U.S. Trust is representing their interests and it has acknowledged and accepted the duties, responsibilities and liabilities required of an independent fiduciary. In this regard, U.S. Trust represents that it is an affiliate of United States Trust Company of New York (USTC). USTC was founded in New York in 1853 and is subject to regulation as a trust company by the State of New York. USTC is the principal subsidiary of U.S. Trust Corporation, a member of the Federal Reserve System and the Federal Deposit Insurance Corporation, and an entity having approximately $4.1 billion in assets as of December 31, 1999. USTC has over $75 billion in assets under management, a significant percentage of which consists of the assets of Plans that are covered by the Act and/or Code.
In addition, U.S. Trust has served as an independent fiduciary for numerous Plans that acquire or hold employer securities and it has managed, at various times, over $16 billion in employer securities that have been held by such Plans. In managing these investments, U.S. Trust has acted as a fiduciary in a number of transactions involving the acquisition, retention and disposition of employer securities.
U.S. Trust is independent of Sun Life and its affiliates. In this respect, it has no business, ownership or control relationship, nor is it affiliated with Sun Life and its affiliates. In addition, U.S. Trust derives less than one percent of its annual income from Sun Life and its affiliates.
U.S. Trust states that it was retained by Sun Life to consider, on behalf of the Sun Life Plans, whether to approve the Conversion Plan and, if approved, whether to receive consideration in the form of Common Shares or Cash. Specifically, U.S. Trust determined, pursuant to its engagement letter with Sun Life and subject to satisfaction of certain contingencies, that the consummation of the transactions would be prudent for each of the Sun Life Plans. In particular, U.S. Trust: (a) Determined that the Conversion Plan was in the best interest of the Sun Life Plans and their participants and beneficiaries; (b) voted for the Conversion Plan on behalf of the Sun Life Plans; (c) received either Common Shares or Cash on behalf of a Sun Life Plans; (d) determined that the transactions would not violate the investment objectives and policies of the Sun Life Plans; (e) negotiated a reasonable allocation of proceeds between Sun Life and the participants in the Sun Life Plans based upon employee and employer contributions made to such Sun Life Plans over a three year period; and (f) took (and will continue to take until the proposed exemption becomes final) all actions that were (or will be) necessary and appropriate to safeguard the interests of the Sun Life Plans.
U.S. Trust states that the aforementioned determinations were based upon its analyses of Sun Life's Conversion Plan and financial performance. In addition, U.S. Trust explains that its determinations were based upon the assumption that the exemption would be granted. Further, U.S. Trust notes that the consummation of the transactions was conditioned upon approval by Eligible Policyholders of the Conversion Plan, including the receipt of Canadian and Michigan regulatory approvals, and other conditions set forth in the Conversion Plan.
As a general matter, U.S. Trust states that its determinations regarding the proposed transactions were based upon its economic analysis of the consideration to be acquired by the Sun Life Plans. In this connection, U.S. Trust represents that it performed a comprehensive analysis of Sun Life in the context of prevailing market conditions and concluded that the proposed aggregate consideration that would be received by the Sun Life Plans was fair to such Plans from financial point of view. In forming its conclusion, U.S. Trust asserts that it reviewed various documents, including but not limited to, (a) Sun Life's annual reports and related financial information; (b) a Statement of Actuarial Opinion regarding the methodology used to allocate the demutualization benefits among the policyholders; (c) opinions of the appointed actuary; and (d) ratings of Sun Life by Standard & Poor's and Duff & Phelps. In addition, U.S. Trust represents that it hired independent legal counsel and reviewed all relevant information regarding the Plans and public documents provided by the Michigan Insurance Commissioner.
On December 15, 1999, U.S. Trust states that its Special Fiduciary Committee (the Special Fiduciary Committee), including representatives from corporate counsel and other bank management, met and determined that the transactions were in the best interests of the participants and beneficiaries of the Sun Life Plans. Then, on February 9, 2000, the Special Fiduciary Committee convened again and determined to elect to receive compensation in the form of 139,787 Common Shares for the Retirement Plan, and to elect to receive Cash for the Staff Life Insurance Plan (
Both the Staff Life Insurance Plan and the Group Life Insurance Plan provide for employee contributions.
With respect to the Staff Life Insurance Plan under which participants make contributions solely to pay for optional benefits and Sun Life makes contributions for basic benefits, U.S. Trust explains that the proportion of total premiums paid by participants was 38 percent. Therefore, Sun Life proposed to allocate 38 percent of the demutualization proceeds to pay for optional participant benefits under the Staff Life Insurance Plan. According to U.S. Trust, Sun Life expects that the demutualization proceeds would be sufficient to pay for a 1.5 year “premium holiday” for participants
Under the Group Life Insurance Plan, U.S. Trust notes that participants contributed 54 percent of the total premiums paid by this Plan until 1997, after which time the Plan became totally noncontributory. U.S. Trust points out that Sun Life proposed to increase the benefit levels of the current participants so that these participants would be able to share in the demutualization proceeds in a manner proportionate to their past contributions. In this regard, benefits for participants in the Group Life Insurance Plan would be enhanced by 54 percent of the Conversion consideration received, thereby representing the same ratio participant premium payments bore to the total premiums paid. Although Sun Life expected the demutualization proceeds would be sufficient to pay for two years of the benefit enhancement based on a sale of the Common Shares at the assumed IPO price and current premium costs,
In evaluating Sun Life's proposed methods of providing benefits to participants equal to the portion of the demutualization consideration received by each Sun Life Plan that was attributable to participant contributions, U.S. Trust states that it took into account such factors as: (a) The practical impossibility of allocating benefits directly to the participants whose contributions contributed to the demutualization proceeds;
18. In summary, it is represented that the transactions satisfied or will satisfy the statutory criteria for an exemption under section 408(a) of the Act because:
(a) The Conversion Plan, which was implemented pursuant to stringent procedural and substantive safeguards imposed under Canadian and Michigan law, will not require any ongoing supervision by the Department.
(b) One or more independent Plan fiduciaries, including U.S. Trust, which is representing the interests of the Sun Life Plans, had an opportunity to determine whether to vote to approve the Conversion Plan and was responsible for all such decisions.
(c) Eligible Policyholders that were Plans were allowed to acquire Common Shares, Cash or Policy Credits, in exchange for and in extinguishment of, their membership interests in Sun Life, and no Eligible Policyholder paid any brokerage commissions or fees to Sun Life or its affiliates in connection with their receipt of Common Shares or with respect to the sale of Electing Shares in the IPO.
(d) Neither Sun Life nor its affiliates exercised discretion with respect to voting on the Conversion Plan or with respect to an election made by any Eligible Policyholder which was a Plan, nor did Sun Life or its affiliates provide “investment advice,” as that term is defined in 29 CFR 2510.3-21(c) with respect to any election made by such Plan policyholder.
(e) The Conversion did not (and will not) reduce policy benefits, values or guarantees, or increase premiums, in any way, and dividend-paying policies will continue to receive dividends if and when declared.
Ms. Jan D. Broady of the Department, telephone (202) 219-8881. (This is not a toll-free number.)
The Department is considering granting an exemption under the authority of 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, 32847, August 10, 1990). If the exemption is granted, the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to the proposed purchase by the IRA of certain closely held common stock (the Stock) from the Ross Family Trust (the Family Trust), a disqualified person with respect to the IRA,
(a) The purchase is a one-time transaction for cash;
(b) The terms and conditions of the purchase are at least as favorable to the IRA as those available in a comparable arm's length transaction with an unrelated party;
(c) The IRA pays a purchase price that is no greater than the fair market value of the Stock at the time of the transaction, as established by a qualified, independent appraiser;
(d) The IRA pays no commissions nor other expenses in connection with the purchase; and
The fair market value of the Stock represents no more than 25 percent of the total assets of the IRA at the time of the transaction.
1. The IRA is an individual retirement account, as described under section 408(a) of the Code. The IRA was established by Floyd A. Ross, who is the sole participant. As of June 30, 2000, the IRA had total assets of $373,222.91. The trustee of the IRA is the Capital Guardian Trust Co.
2. It is proposed that the IRA purchase shares of the Stock from the Family Trust, established October 23, 1985, with Mr. Ross and his wife as the grantors and co-trustees.
The Stock consists of shares of the Savings Bank of Mendocino County (the Bank), a state chartered bank headquartered in Ukiah, California. Mr. Ross is the Executive Vice President of the Bank. According to the applicant, the Bank was established in 1903, and a majority of the 100,000 shares outstanding of the Stock is held by a descendant of one of the Bank's founders, who is not related to Mr. Ross. There are a total of 265 registered shareholders of the Stock. The Family Trust holds 1,332 shares of the Stock. Mr. Ross does not own any shares of the Stock in his personal capacity. The Stock has paid quarterly dividends every year and has paid $4.50 per share each quarter of the current year.
3. The Stock has been appraised by F. D. Grothe, a qualified, independent
Mr. Grothe concluded that the fair market value of the Stock was $755.00 per share, as of April 7, 2000. He states that the Bank is nationally ranked among the top one percent of small banks. Mr. Grothe attached to his report a list of the last five sales of the Stock. He states that these sales are market-driven and are higher than the average book value of the Stock, which, according to the 1999 Annual Report, was $635.80 per share. He also states that the market for stocks in small, independent banks is driven by larger banks wanting to expand into certain areas. It has been Mr. Grothe's experience that most merger sales are at two to two and one-half times book value. Thus, in Mr. Grothe's opinion, the $775.00 per share market price could be very conservative, in the event of a merger or buyout.
4. Accordingly, the applicant represents that the Stock is an excellent investment opportunity for the IRA. Thus, it is proposed that 25 percent of the IRA's assets ($93,305.73) be used to purchase approximately 120 shares (assuming a value of $775.00 per share) of the 1332 shares of the Stock held by the Family Trust.
The IRA's purchase price will be the fair market value of the Stock at the time of the transaction, based upon an updated independent appraisal. The IRA will pay no commissions nor other expenses in connection with the purchase. The applicant represents that, although the Stock is closely held, there is a definite market for the Stock. Therefore, the applicant states that the proposed purchase of the Stock by the IRA will not adversely affect the liquidity needs of the IRA.
5. In summary, the applicant represents that the proposed transaction will satisfy the statutory criteria for an exemption under section 4975(c)(2) of the Code because: (a) The purchase will be a one-time transaction for cash; (b) the terms and conditions of the purchase will be at least as favorable to the IRA as those available in a comparable arm's length transaction with an unrelated party; (c) the IRA will pay a purchase price that is no greater than the fair market value of the Stock at the time of the transaction, as established by a qualified, independent appraiser; (d) the IRA will pay no commissions nor other expenses in connection with the purchase; and (e) the fair market value of the Stock will represent no more than 25 percent of the total assets of the IRA at the time of the transaction.
Because Mr. Ross is the sole participant in his IRA, it has been determined that there is no need to distribute the notice of proposed exemption to interested persons. Comments and requests for a hearing with respect to the proposed exemption are due within 30 days of the date of publication of this notice in the
The Department is considering granting an exemption under the authority of 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, 32847, August 10, 1990). If the exemption is granted, the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to the proposed sale by the Plan of certain improved real property (the Property) to Morris and Arthur Platt, disqualified persons with respect to the Plan,
1. The Plan, which is a defined contribution profit sharing plan sponsored by Platt Orthopedics (the Employer), has three participants, Morris and Arthur Platt and Arthur Platt's wife. Morris and Arthur Platt, orthopedic surgeons, are the owners of the Employer and the trustees of the Plan. Their practice was formerly in the State of New York but was relocated to Rancho Mirage, California. The fair market value of the assets of the Plan was $762,832, as of December 31, 1998, the date of the Plan's most recently available financial statement.
2. The Property consists of a five-story commercial building on a 2,319 sq. ft. lot, located at 165 Orchard Street, Borough of Manhattan, New York, New York. The building is vacant and boarded up and in need of renovation. The adjacent lots are owned by persons unrelated to the Plan, the Employer, and the Platts.
3. The Property was acquired by the Plan from Orcho Realty, an unrelated party, in 1996, for a total purchase price of $435,000. Orcho Realty also financed the purchase of the Property, which the Plan now owns free and clear. The applicants represent that the following amounts were expended by the Plan at various times from September 3, 1996 to December 31, 1999 in connection with the purchase of the Property (mortgage and interest payments), plus expenses (maintenance, taxes, and insurance): $206,381.25 in 1996; $60,100 in 1997; $98,347 in 1998; and $134,023 in 1999. Thus, including the $435,000 purchase price, the Plan has made total expenditures of $498,851.25 with respect to the Property from 1996 to 1999. The applicants represent that the Property has not been leased to, nor used by, by anyone, including a disqualified person with respect to the Plan, at any time since its acquisition by
4. The applicants have obtained two appraisals of the Property by qualified, independent appraisers, both certified in the State of New York. The first appraiser is Eric A. Sterling, IFA, ASA, GAA, of Sterling Appraisals Associates, Inc. (the Sterling Appraisal), located in Bronx, New York. The Sterling Appraisal, relying on the Direct Sales Comparison Approach to valuation, estimated that the fair market value of the Property was $460,000, as of September 23, 1999. The second appraiser is John M. Watch, of JW Consulting (the Watch Appraisal), located in Flushing, New York. The Watch Appraisal utilized the Market Approach and Cost Approach and concluded that the fair market value of the Property was $525,000, as of September 24, 1999.
The Sterling Appraisal examined four recent sales of comparable properties, while the Watch Appraisal examined five recent sales of comparable properties, in the local real estate area, in making a determination of the fair market value of the Property. The zoning of the Property is “C6-1, Commercial.” Both appraisals noted that the improvements are in poor condition and that the Property needs to be restored before it can attain its highest and best use, which likely would be a “Mixed Use” apartment building with retail space on the ground level.
5. The applicants represent that they have attempted to sell the Property on the open market but were advised by a broker that, because the Property needs extensive renovation, it would be difficult to sell at all, except for a bargain price. The applicants propose, therefore, to purchase the Property from the Plan for an amount in cash equal to the fair market value of the Property, as of the date of the sale. This amount would be based upon an average of the two independent appraisals referred to in Item 4, above, because of a significant disparity in the valuations. This amount was $492,500, as of September, 1999. The appraisals will be updated at the time of the transaction. The Plan would pay no commissions nor other expenses relating to the sale.
The applicants represent that the exemption will be in the best interests of the Plan because the sale will allow the Plan to divest itself of a non-income producing, illiquid asset. In addition, the sale proceeds will be reinvested in other assets that will increase diversification of the Plan's assets, achieve a higher overall rate of return for the Plan's assets, and facilitate the payment of retirement benefits.
6. In summary, the applicants represent that the proposed transaction satisfies the statutory criteria for an exemption under section 4975(c)(2) of the Code for the following reasons: (a) The sale will be a one-time transaction for cash; (b) the Plan will pay no commissions nor other expenses relating to the sale; (c) the Plan will receive an amount equal to the average of two independent appraisals of the Property's fair market value, as of the date of the sale; and (d) the sale will allow the Plan to reinvest the sale proceeds in other assets that will achieve greater diversification and a higher overall rate of return for the Plan's assets.
Because Morris and Arthur Platt, and Arthur Platt's wife, are the only participants in the Plan to be affected by the subject transaction, it has been determined that there is no need to distribute the notice of proposed exemption to interested persons. Comments and requests for a hearing with respect to the proposed exemption are due within 30 days of the date of publication of this notice in the
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of the Act and/or the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which, among other things, require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(b) of the Act; 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) Before an exemption may be granted under section 408(a) of the Act and/or section 4975(c)(2) of the Code, the Department must find that the exemption is administratively feasible, in the interests of the plan and of its participants and beneficiaries, and protective of the rights of participants and beneficiaries of the plan;
(3) The proposed exemptions, if granted, will be supplemental to, and not in derogation of, any other provisions of the Act and/or 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; and
(4) The proposed exemptions, if granted, will be subject to the express condition that the material facts and representations contained in each application are true and complete, and that each application accurately describes all material terms of the transaction which is the subject of the exemption.
Pension and Welfare Benefits Administration, Department of Labor.
Grant of individual exemption to modify and replace PTE 99-15.
This document contains a final exemption (the Final Exemption) by the Department of Labor (the Department) which amends and replaces PTE 99-15 (64 FR 1648, April 5, 1999), an exemption granted to Salomon Smith Barney. PTE 99-15 relates to the operation of the TRAK Personalized Investment Advisory Service product (the TRAK Program) and the Trust for Consulting Group Capital Markets Funds (the Trust). These transactions are described in a notice of pendency (the Proposed
This exemption is effective as of April 1, 2000 with respect to the amendments to Section II(i) and Section III(b) of the grant notice. In addition, this exemption is effective as of April 1, 2000 with respect to the inclusion of new Section III(d) in the grant notice.
Ms. Jan D. Broady, Office of Exemption Determinations, Pension and Welfare Benefits Administration, U.S. Department of Labor, telephone (202) 219-8881. (This is not a toll-free number.)
On June 1, 2000, the Department published, in the
PTE 99-15 also provides exemptive relief from the restrictions of section 406(b) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(E) and (F) of the Code, with respect to the provision, by the Consulting Group of Salomon Smith Barney (the Consulting Group), of (1) investment advisory services or (2) an automatic reallocation option to an independent fiduciary of a participating Plan (the Independent Plan Fiduciary) which may result in such fiduciary's selection of a portfolio (the Portfolio) in the TRAK Program for the investment of Plan assets.
PTE 94-50 permitted Smith, Barney Inc. (Smith Barney), Salomon Smith Barney's predecessor, to add a daily-traded collective investment fund (the GIC Fund) to the existing portfolios (the Portfolios) of mutual funds (the Funds) comprising the Trust, and to describe the various entities operating the GIC Fund. PTE 94-50 also replaced references to Shearson Lehman Brothers, Inc. (Shearson Lehman) with Smith Barney and amended and replaced PTE 92-77.
Finally, PTE 92-77 permitted Shearson Lehman to make the TRAK Program available to Plans that acquired shares in the former Trust for TRAK Investments and allowed the Consulting Group to provide investment advisory services to an Independent Plan Fiduciary which might result in such fiduciary's selection of a Portfolio in the TRAK Program for the investment of Plan assets.
In the Proposed Exemption, Salomon Smith Barney requested a modification of PTE 99-15 and a replacement of that exemption with a new exemption for purposes of uniformity.
The Proposed Exemption was requested in an application filed on behalf of Salomon Smith Barney pursuant to section 408(a) of the Act and section 4975(c)(2) of the Code, and in accordance with the procedures (the Procedures) set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, August 10, 1990). Effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978 (43 FR 47713, October 17, 1978) transferred the authority of the Secretary of the Treasury to issue exemptions of the type requested to the Secretary of Labor. Accordingly, this Final Exemption is being issued solely by the Department.
The Proposed Exemption gave interested persons an opportunity to comment and to request a hearing. During the comment period, the Department received two written comments and no requests for a hearing. One of the comments was submitted by the holder of an IRA which participates in the TRAK Program. The commenter said he concurred with the modifications proposed by Salomon Smith Barney to amend and clarify the terms “affiliate” and “officer.” The commenter also stated that he supported the proposed modification of the one percent limitation on the acquisition, by an independent Sub-Adviser, of securities that are issued by Salomon Smith Barney and/or its affiliates in the Sub-Adviser's replication of an Index. The commenter explained that he believed the requested changes made sense and would be beneficial to all TRAK Program participants. Therefore, the commenter urged the Department to approve the Final Exemption.
The second comment was submitted by Salomon Smith Barney. The comment is intended to clarify and modify the preamble (the Preamble) of the Proposed Exemption. Following is a discussion of Salomon Smith Barney's comment letter and the Department's responses with respect thereto.
1.
In addition, on page 35140 of the Proposed Exemption, the last paragraph of the Preamble states, in part, that—
On page 35141 of the Proposed Exemption, the third sentence of the first “carry-over” paragraph of the Preamble identifies two Funds which currently comply with the one percent limitation on investments in Citigroup Common Stock. These Funds are the “Consulting Group Capital Markets Large Cap Value Fund” and the “Large Cap Growth Consulting Group Capital Markets Fund.” However, Salomon Smith Barney suggests, for the purpose of clarity, that the formal names of the subject Funds be specified. Thus, Salomon Smith Barney explains that the proper names for the Funds are the “Consulting Group Capital Markets Funds Large Capitalization Value Equity Investments” and the “Consulting Group Capital Markets Funds Large Capitalization Growth Investments.” Similarly, in the next paragraph of the Proposed Exemption on page 35141 of the Preamble, Salomon Smith Barney wishes to clarify that the formal name for the S&P Fund designated as the “Consulting Group Capital Markets S&P 500 Index Investment Fund Portfolio” is the “Consulting Group Capital Markets S&P Index Investment Fund Portfolio.”
In response to these comments, the Department acknowledges the foregoing clarifications to the names for the Funds identified in the Preamble of the Proposed Exemption.
2.
In response to this comment, the Department notes Salomon Smith Barney's modification to the billing procedure in the calculation of the Outside Fee for participants in the TRAK Program that are section 401(k) Plans.
For further information regarding the comments or other matters discussed herein, interested persons are encouraged to obtain copies of the exemption application files (Exemption Application Nos. D-10809 and D-10865) the Department is maintaining in this case. The complete application files, as well as all supplemental submissions received by the Department, are made available for public inspection in the Public Documents Room of the Pension and Welfare Benefits Administration, Room N-5638, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210.
Accordingly, after giving full consideration to the entire record, including the written comments received, the Department has decided to grant the exemption subject to the modifications and clarifications described above.
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of the Act and the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which require, among other things, a fiduciary to discharge his or her duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(B) of the Act; nor does it affect the requirements of section 401(a) of the Code that the plan operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) The exemption will extend to transactions prohibited under section 406(b)(3) of the Act and section 4975(c)(1)(F) of the Code;
(3) In accordance with section 408(a) of the Act and section 4975(c)(2) of the Code, and the Procedures cited above, and based upon the entire record, the Department finds that the exemption is administratively feasible, in the interest of the plan and of its participants and beneficiaries and protective of the rights of participants and beneficiaries of the plan;
(4) The exemption will be supplemental to, and not in derogation of, any other provisions of the Act and the Code, including statutory or administrative exemptions. 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; and
(5) The exemption is subject to the express condition that the Summary of Facts and Representations set forth in the notice of proposed exemption relating to PTE 99-15, as amended by this Final Exemption, accurately describe, where relevant, the material terms of the transactions to be consummated pursuant to this exemption.
Under the authority of section 408(a) of the Act and section 4975(c)(2) of the Code and in accordance with the Procedures set forth above, the Department hereby amends PTE 99-15 as follows:
A. The restrictions of section 406(a) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A) through (D) of the Code, shall not apply, to the purchase or redemption of shares by an employee benefit plan, an individual retirement account (the IRA), a retirement plan for self-employed individuals (the Keogh Plan), or an individual account pension plan that is subject to the provisions of Title I of the Act and established under section 403(b) of the Code (the Section 403(b) Plan; collectively, the Plans) in the Trust for Consulting Group Capital Market Funds (the Trust), established by Salomon Smith Barney, in connection with such Plans' participation in the TRAK Personalized Investment Advisory Service product (the TRAK Program).
B. The restrictions of section 406(b) of the Act and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(E) and (F) of the Code, shall not apply, to the provision, by the Consulting Group, of (1) investment advisory services or (2) an automatic reallocation option (the Automatic Reallocation Option) to an
This exemption is subject to the following conditions that are set forth below in Section II.
(a) The participation of Plans in the TRAK Program will be approved by an Independent Plan Fiduciary. For purposes of this requirement, an employee, officer or director of Salomon Smith Barney and/or its affiliates covered by an IRA not subject to Title I of the Act will be considered an Independent Plan Fiduciary with respect to such IRA.
(b) The total fees paid to the Consulting Group and its affiliates will constitute no more than reasonable compensation.
(c) No Plan will pay a fee or commission by reason of the acquisition or redemption of shares in the Trust.
(d) The terms of each purchase or redemption of Trust shares shall remain at least as favorable to an investing Plan as those obtainable in an arm's length transaction with an unrelated party.
(e) The Consulting Group will provide written documentation to an Independent Plan Fiduciary of its recommendations or evaluations based upon objective criteria.
(f) Any recommendation or evaluation made by the Consulting Group to an Independent Plan Fiduciary will be implemented only at the express direction of such Independent Plan Fiduciary, provided, however, that—
(1) If such Independent Plan Fiduciary shall have elected in writing (the Election), on a form designated by Salomon Smith Barney from time to time for such purpose, to participate in the Automatic Reallocation Option under the TRAK Program, the affected Plan or participant account will be automatically reallocated whenever the Consulting Group modifies the particular asset allocation recommendation which the Independent Plan Fiduciary has chosen. Such Election shall continue in effect until revoked or terminated by the Independent Plan Fiduciary in writing.
(2) Except as set forth below in paragraph II(f)(3), at the time of a change in the Consulting Group's asset allocation recommendation, each account based upon the asset allocation model (the Allocation Model) affected by such change would be adjusted on the business day of the release of the new Allocation Model by the Consulting Group, except to the extent that market conditions, and order purchase and redemption procedures, may delay such processing through a series of purchase and redemption transactions to shift assets among the affected Portfolios.
(3) If the change in the Consulting Group's asset allocation recommendation exceeds an increase or decrease of more than 10 percent in the absolute percentage allocated to any one investment medium (
(4) An Independent Plan Fiduciary will receive a trade confirmation of each reallocation transaction. In this regard, for all Plan investors other than Section 404(c) Plan accounts (
(g) The Consulting Group will generally give investment advice in writing to an Independent Plan Fiduciary with respect to all available Portfolios. However, in the case of a Plan providing for participant-directed investments (the Section 404(c) Plan), the Consulting Group will provide investment advice that is limited to the Portfolios made available under the Plan.
(h) Any sub-adviser (the Sub-Adviser) that acts for the Trust to exercise investment discretion over a Portfolio will be independent of Salomon Smith Barney and its affiliates.
(i) Immediately following the acquisition by a Portfolio of any securities that are issued by Salomon Smith Barney and/or its affiliates, such as Citigroup Inc. common stock (the Citigroup Common Stock), the percentage of that Portfolio's net assets invested in such securities will not exceed one percent. However, this percentage limitation may be exceeded if—
(1) The amount held by a Sub-Adviser in managing a Portfolio is held in order to replicate an established third party index (the Index).
(2) The Index represents the investment performance of a specific segment of the public market for equity securities in the United States and/or foreign countries. The organization creating the Index must be—
(i) Engaged in the business of providing financial information;
(ii) A publisher of financial news information; or
(iii) A public stock exchange or association of securities dealers.
The Index is created and maintained by an organization independent of Salomon Smith Barney and its affiliates and is a generally-accepted standardized Index of securities which is not specifically tailored for use by Salomon Smith Barney and its affiliates.
(3) The acquisition or disposition of Citigroup Common Stock does not include any agreement, arrangement or understanding regarding the design or operation of the Portfolio acquiring the Citigroup Common Stock, which is intended to benefit Salomon Smith Barney or any party in which Salomon Smith Barney may have an interest.
(4) The Independent Plan Fiduciary authorizes the investment of a Plan's assets in an Index Fund which purchases and/or holds Citigroup Common Stock and the Sub-Adviser is responsible for voting any shares of Citigroup Common Stock that are held by an Index Fund on any matter in which shareholders of Citigroup Common Stock are required or permitted to vote.
(j) The quarterly investment advisory fee that is paid by a Plan to the Consulting Group for investment advisory services rendered to such Plan will be offset by such amount as is necessary to assure that the Consulting Group retains no more than 20 basis points from any Portfolio (with the exception of the Government Money Investments Portfolio and the GIC Fund Portfolio for which the Consulting Group and the Trust will retain no
(k) With respect to its participation in the TRAK Program prior to purchasing Trust shares,
(1) Each Plan will receive the following written or oral disclosures from the Consulting Group:
(A) A copy of the Prospectus for the Trust discussing the investment objectives of the Portfolios comprising the Trust, the policies employed to achieve these objectives, the corporate affiliation existing between the Consulting Group, Salomon Smith Barney and its subsidiaries and the compensation paid to such entities.
(B) Upon written or oral request to Salomon Smith Barney, a Statement of Additional Information supplementing the Prospectus which describes the types of securities and other instruments in which the Portfolios may invest, the investment policies and strategies that the Portfolios may utilize and certain risks attendant to those investments, policies and strategies.
(C) A copy of the investment advisory agreement between the Consulting Group and such Plan relating to participation in the TRAK Program and, if applicable, informing Plan investors of the Automatic Reallocation Option.
(D) Upon written request of Salomon Smith Barney, a copy of the respective investment advisory agreement between the Consulting Group and the Sub-Advisers.
(E) In the case of a Section 404(c) Plan, if required by the arrangement negotiated between the Consulting Group and the Plan, an explanation by a Salomon Smith Barney Financial Consultant (the Financial Consultant) to eligible participants in such Plan, of the services offered under the TRAK Program and the operation and objectives of the Portfolios.
(F) A copy of the Proposed Exemption and the Final Exemption pertaining to the exemptive relief described herein.
(2) If accepted as an investor in the TRAK Program, an Independent Plan Fiduciary of an IRA or Keogh Plan, is required to acknowledge, in writing, prior to purchasing Trust shares that such fiduciary has received copies of the documents described above in subparagraph (k)(1) of this Section.
(3) With respect to a Section 404(c) Plan, written acknowledgement of the receipt of such documents will be provided by the Independent Plan Fiduciary (
(4) With respect to a Plan that is covered under Title I of the Act, where investment decisions are made by a trustee, investment manager or a named fiduciary, such Independent Plan Fiduciary is required to acknowledge, in writing, receipt of such documents and represent to Salomon Smith Barney that such fiduciary is (a) independent of Salomon Smith Barney and its affiliates, (b) capable of making an independent decision regarding the investment of Plan assets and (c) knowledgeable with respect to the Plan in administrative matters and funding matters related thereto, and able to make an informed decision concerning participation in the TRAK Program.
(l) Subsequent to its participation in the TRAK Program, each Plan receives the following written or oral disclosures with respect to its ongoing participation in the TRAK Program:
(1) The Trust's semi-annual and annual report which will include financial statement for the Trust and investment management fees paid by each Portfolio.
(2) A written quarterly monitoring statement containing an analysis and an evaluation of a Plan investor's account to ascertain whether the Plan's investment objectives have been met and recommending, if required, changes in Portfolio allocations.
(3) If required by the arrangement negotiated between the Consulting Group and a Section 404(c) Plan, a quarterly, detailed investment performance monitoring report, in writing, provided to an Independent Plan Fiduciary of such Plan showing Plan level asset allocations, Plan cash flow analysis and annualized risk adjusted rates of return for Plan investments. In addition, if required by such arrangement, Financial Consultants will meet periodically with Independent Plan Fiduciaries of Section 404(c) Plans to discuss the report as well as with eligible participants to review their accounts' performance.
(4) If required by the arrangement negotiated between the Consulting Group and a Section 404(c) Plan, a quarterly participant performance monitoring report provided to a Plan participant which accompanies the participant's benefit statement and describes the investment performance of the Portfolios, the investment performance of the participant's individual investment in the TRAK Program, and gives market commentary and toll-free numbers that will enable the participant to obtain more information about the TRAK Program or to amend his or her investment allocations.
(5) On a quarterly and annual basis, written disclosures to all Plans of the (a) percentage of each Portfolio's brokerage commissions that are paid to Salomon Smith Barney and its affiliates and (b) the average brokerage commission per share paid by each Portfolio to Salomon Smith Barney and its affiliates, as compared to the average brokerage commission per share paid by the Trust to brokers other than Salomon Smith Barney and its affiliates, both expressed as cents per share.
(m) Salomon Smith Barney shall maintain, for a period of six years, the records necessary to enable the persons described in paragraph (n) of this Section to determine whether the conditions of this exemption have been met, except that (1) a prohibited transaction will not be considered to have occurred if, due to circumstances beyond the control of Salomon Smith Barney and/or its affiliates, the records are lost or destroyed prior to the end of the six year period, and (2) no party in interest other than Salomon Smith Barney shall be subject to the civil penalty that may be assessed under section 502(i) of the Act, or to the taxes imposed by section 4975(a) and (b) of the Code, if the records are not maintained, or are not available for examination as required by paragraph (n) below.
(n)(1) Except as provided in section (2) of this paragraph and notwithstanding any provisions of subparagraphs (a)(2) and (b) of section 504 of the Act, the records referred to in paragraph (m) of this Section II shall be unconditionally available at their customary location during normal business hours by:
(A) Any duly authorized employee or representative of the Department or the Service;
(B) Any fiduciary of a participating Plan or any duly authorized representative of such fiduciary;
(C) Any contributing employer to any participating Plan or any duly
(D) Any participant or beneficiary of any participating Plan, or any duly authorized representative of such participant or beneficiary.
(2) None of the persons described above in subparagraphs (B)-(D) of this paragraph (n) shall be authorized to examine the trade secrets of Salomon Smith Barney or commercial or financial information which is privileged or confidential.
For purposes of this exemption:
(a) The term “Salomon Smith Barney” means Salomon Smith Barney Inc. and any affiliate of Salomon Smith Barney, as defined in paragraph (b) of this Section III.
(b) An “affiliate” of Salomon Smith Barney includes—
(1) Any person directly or indirectly through one or more intermediaries, controlling, controlled by, or under common control with Salomon Smith Barney (For purposes of this subparagraph, the term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual);
(2) Any individual who is an officer (as defined in Section III(d) hereof), director or partner in Salomon Smith Barney or a person described in subparagraph (b)(1);
(3) Any corporation or partnership of which Salomon Smith Barney, or an affiliate described in subparagraphs(b)(1), is a 10 percent or more partner or owner; and
(4) Any corporation or partnership of which any individual which is an officer or director of Salomon Smith Barney is a 10 percent or more partner or owner.
(c) An “Independent Plan Fiduciary” is a Plan fiduciary which is independent of Salomon Smith Barney and its affiliates and is either—
(1) A Plan administrator, sponsor, trustee or named fiduciary, as the recordholder of Trust shares under a Section 404(c) Plan;
(2) A participant in a Keogh Plan;
(3) An individual covered under (i) a self-directed IRA or (ii) a Section 403(b) Plan, which invests in Trust shares;
(4) A trustee, investment manager or named fiduciary responsible for investment decisions in the case of a Title I Plan that does not permit individual direction as contemplated by Section 404(c) of the Act; or
(5) A participant in a Plan, such as a Section 404(c) Plan, who is permitted under the terms of such Plan to direct, and who elects to direct, the investment of assets of his or her account in such Plan.
(d) The term “officer” means a president, any vice president in charge of a principal business unit, division or function (such as sales, administration or finance), or any other officer who performs a policymaking function for the entity.
This exemption is effective as of April 1, 2000 with respect to the amendments to Section II(i) and Section III(b) of this grant notice. In addition, this exemption is effective as of April 1, 2000 with respect to the inclusion of new Section III(d) in the grant notice.
The availability of this exemption is subject to the express condition that the material facts and representations contained in the application for exemption are true and complete and accurately describe all material terms of the transactions. In the case of continuing transactions, if any of the material facts or representations described in the applications change, the exemption will cease to apply as of the date of such change. In the event of any such change, an application for a new exemption must be made to the Department.
For a more complete statement of the facts and representations supporting the Department's decision to grant PTE 92-77, PTE 94-50 and PTE 99-15, refer to the proposed exemptions and the grant notices which are cited above.
Medicare Payment Advisory Commission.
Notice of meeting.
The Commission will hold its next public meeting on Thursday, September 14, 2000, and Friday, September 15, 2000, at the Ronald Reagan Building, International Trade Center, 1300 Pennsylvania Avenue, NW, Washington, DC. The meeting is tentatively scheduled to begin at 10 a.m. on September 14, and 9:00 a.m. on September 15.
Topics for discussion include: quality standards for Medicare+Choice, update on Medicare+Choice plan withdrawals and the approval of the private fee-for-service plan, risk adjustment in Medicare+Choice, risk adjustment for the frail elderly, options for accelerating the buy-down of beneficiary coinsurance under the outpatient prospective payment system (PPS), consistency of physician payments and actual practice expenses, indicators for evaluating Medicare payment policies, update on the post-acute care PPSs, defining access and options to improve monitoring, approaches for measuring access to home health services under the new PPS, and special payment provisions for rural providers.
Agendas will be mailed on September 5, 2000. The final agenda will be available on the Commission's website (www.MedPAC.gov)
MedPac's address is: 1730 K Street, NW, Suite 800, Washington, DC 20006. The telephone number is (202) 653-7220.
Diane Ellison, Office Manager, (202) 653-7220.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Pub. L. 92-463, as amended, the National Aeronautics and Space Administration announces a meeting of the NASD Advisory Council, Space Science Advisory Committee, Structure of Evolution of the Universe Subcommittee.
Monday, September 25, 2000, 8:30 a.m. to 5:30 p.m., Tuesday, September 26, 2000, 8:30 a.m. to 5 p.m.
National Aeronautics and Space Administration, Conference Room 5H 46, 300 E Street, SW., Washington, DC 20546.
Dr. Alan Bunner, Code S, National
The meeting will be open to the public up to the capacity of the room. The agenda for the meeting is as follows:
• Structure and Evolution of the Universe in Decadal Survey and Enterprise Strategic Plan
• Supernova Acceleration Probe
• Space Station Issues
• Structure and Evolution of the Universe/National Aeronautics and Space Administration Basic Physics Calibrations
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Visitors will be requested to sign a visitor's register.
National Aeronautics and Space Administration.
Notice of meeting.
The 4th Digital Earth Community Meeting will bring together federal, state, and local government organizations, private industry, academia, and others to work together to share data, time, and knowledge. The purpose of the meeting is to enable and facilitate the evolution of Digital Earth, a digital representation of the planet that will allow people to explore and interact with vast amounts of natural and cultural information. To accomplish this, it is important to access all Earth referenced data and resources to enhance our understanding of the physical, ecological, and social dimensions of the Earth. The data, infrastructure, and capabilities supporting a Digital Earth are found throughout the public and private sectors.
The meeting will be held on Tuesday, September 19, 2000, from 8 a.m. to 5 p.m. Group demonstrations will be held from 5 p.m. to 8 p.m.
The meeting will be held in the National Geographic Society Auditorium, 1145 17th Street NW., Washington, DC.
To reserve a space for the meeting, please contact Amy Frederick at (301) 286-4058 or via email at
Institute of Museum and Library Services.
Notice of meeting.
This notice sets forth the agenda of a forthcoming meeting of the National Museum Services Board and the National Commission on Libraries and Information Science. This notice also describes the function of the boards. Notice of this meeting is required under the Government through the Sunshine Act (Public Law 94-409) and regulations of the Institute of Museum and Library Services, 45 CFR 1180.84.
9 am-12 pm on Friday, September 15, 2000.
Open.
The Madison Hotel, 15th and M Streets, NW, Mt. Vernon Room—Salon C, Washington, DC 20005, (202) 862-1600.
Elizabeth Lyons, Special Assistant to the Director, Institute of Museum and Library Services, 1100 Pennsylvania Avenue, NW, Room 510, Washington, DC 20506, (202) 606-4649.
The National Museum Services Board is established under the Museum Services Act, Title II of the Arts, Humanities, and Cultural Affairs Act of 1976, Public Law 94-462. The Board has responsibility for the general policies with respect to the powers, duties, and authorities vested in the Institute under the Museum Services Act.
The United States National Commission on Libraries and Information Science (NCLIS) is established under Public law 91-345 as amended, The National Commission on Libraries and Information Science Act. In accordance with section 5(b) of the Act, the commission has the responsibility for advising the Director of the Institute of Museum and Library Services on general policies relating to library services.
The meeting on Friday, September 15, 2000 will be open to the public. If you need special accommodations due to a disability, please contact: Institute of Museum and Library Services, 1100 Pennsylvania Avenue, NW, Washington, DC 20506—(202) 606-8536—TDD (202) 606-8636 at least seven (7) days prior to the meeting date.
Pursuant to delegation by the Commission,
The hearing will be conducted pursuant to 10 CFR part 2, subpart L, of the Commission's Regulations, “Informal Hearing Procedures for Adjudications in Materials and Operator Licensing Proceedings.” This proceeding concerns an August 9, 2000 request for hearing submitted by petitioner Sarah M. Fields. The request was filed in response to a July 5, 2000 request from International Uranium (USA) Corporation (IUSA) to amend its source material license to receive and process alternate feed materials at its Blanding, Utah White Mesa Uranium Mill from the Heritage Minerals, Inc. site located in Lakehurst, New Jersey. The notice of receipt of the amendment and opportunity for a hearing was published in the
The Presiding Officer in this proceeding is Administrative Judge Ann Marshall Young. Pursuant to the provisions of 10 CFR 2.722, 2.1209, Administrative Judge Charles N. Kelber has been appointed to assist the Presiding Officer in taking evidence and in preparing a suitable record for review.
All correspondence, documents, and other materials shall be filed with Judges Young and Kelber in accordance with 10 CFR 2.1203. Their addresses are:
Washington, D.C. 20555-0001
The U.S. Nuclear Regulatory Commission (the Commission) is considering issuance of an amendment to Facility Operating License (OL) No. NPF-90, issued to the Tennessee Valley Authority (TVA, the licensee), for operation of the Watts Bar Nuclear Plant, Unit 1 (WBN), located in Rhea County, Tennessee.
The proposed amendment would change the OL and Technical Specifications for WBN to reflect an increase in allowable thermal power to 3459 megawatts (thermal), an increase of approximately 1.4 percent.
Before issuance of the proposed license amendment, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act) and the Commission's regulations.
By October 10, 2000, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested persons should consult a current copy of 10 CFR 2.714 which is available at the Commission's Public Document Room, the Gelman Building, 2120 L Street, NW., Washington, DC, and accessible electronically through the ADAMS Public Electronic Reading Room link at the NRC Web site (http://www.nrc.gov). If a request for a hearing or petition for leave to intervene is filed by the above date, the Commission or an Atomic Safety and Licensing Board, designated by the Commission or by the Chairman of the Atomic Safety and Licensing Board Panel, will rule on the request and/or petition; and the Secretary or the designated Atomic Safety and Licensing Board will issue a notice of hearing or an appropriate order.
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest. The petition should also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the Board up to 15 days prior to the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above.
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, or may be delivered to the Commission's Public Document Room, the Gelman Building, 2120 L Street, NW., Washington, DC, by the above date. A copy of the petition should also be sent to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and to General Counsel, Tennessee Valley Authority, ET 10H, 400 East Summit Hill Drive, Knoxville, Tennessee 37902, attorney for the licensee.
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for hearing will not be entertained absent a determination by the Commission, the presiding officer or the presiding Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
If a request for a hearing is received, the Commission's staff may issue the amendment after it completes its technical review and prior to the completion of any required hearing if it publishes a further notice for public comment of its proposed finding of no significant hazards consideration in accordance with 10 CFR 50.91 and 50.92.
For further details with respect to this action, see the application for amendment dated June 7, 2000, as supplemented June 23 and August 24, 2000, which is available for public inspection at the Commission's Public Document Room, the Gelman Building, 2120 L Street, NW., Washington, DC, and accessible electronically through the ADAMS Public Electronic Reading Room link at the NRC Web site (http://www.nrc.gov).
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission (NRC).
Notice of meeting.
NRC will host a public meeting in Rockville, Maryland. The meeting will provide an opportunity for discussion on the revised Standard Review Plan (SRP) Chapter 11 and Nuclear Energy Institute's (NEI) revised Integrated Safety Analysis (ISA) Summary guidance document. The revised SRP can be reviewed on the Internet at the following website: http://techconf.llnl.gov/cgi-bin/library?source=*&library=Part_70—lib_file.
The web site can also be reached by the following method:
1. Go the main NRC web site at: http://www.nrc.gov
2. Scroll down towards the bottom of that page and click on the word “Rulemaking.”
3. Scroll down on the Rulemaking page till you see the words “Technical Conference.” Click on those words.
4. On the page titled “Welcome to the NRC Technical Conference Forum,” click where it says to participate in Technical Conferences.
5. Scroll down to the topic “Draft Standard Review Plan and Guidance on Amendment to 10 CFR Part 70.”
6. Select “Document Library.”
This meeting will provide an opportunity to discuss any comments on the staff's recently revised Chapter 11.
The meeting is scheduled for Tuesday, September 12, 2000, from 9:00 a.m. to 4:30 p.m. The meeting is open to the public.
Technical Training Center T-3B-43 at Two White Flint North, 11545 Rockville Pike, Rockville, Maryland. Visitor parking around the NRC building is limited; however, the meeting site is located adjacent to the White Flint Station on the Metro Red Line.
Heather Astwood, Project Manager, Fuel Cycle Licensing Branch, Division of Fuel Cycle and Safeguards, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone: (301) 415-5819, e-mail
For the Nuclear Regulatory Commission
Nuclear Regulatory Commission.
Notice of meeting.
The U.S. Nuclear Regulatory Commission (NRC) staff is developing an approach for using risk information in the nuclear materials regulatory process. As part of this effort, the NRC staff has developed a draft plan for using risk-informed approaches in the Office of Nuclear Material Safety and Safeguards (NMSS). The plan includes case studies to examine the use of risk information in NMSS. The purpose of the case studies is (1) to illustrate what has been done and what could be done in NMSS to alter the regulatory approach in a risk-informed manner, and (2) to establish a framework for using a risk-informed approach in NMSS. The purpose of the meeting is to communicate the draft plan to the public and receive feedback. The meeting is open to the public and all interested parties may attend and provide comments.
The meeting will be held on September 21, 2000, from 9 a.m. to 12 noon, in the U.S. Nuclear Regulatory
Marissa Bailey, Mail Stop T-8-A-23, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Telephone: (301) 415-8531; Internet: MGB@NRC.GOV.
In SECY-99-100, “Framework for Risk-informed Regulation in the Office of Nuclear Material Safety and Safeguards,” dated March 31, 1999, the NRC staff proposed a framework for risk-informed regulation in NMSS. On June 28, 1999, the Commission approved the staff's proposal. In the associated staff requirements memorandum, the Commission approved the staff's recommendation to implement a five-step process consisting of: (1) Identifying candidate regulatory applications that are amenable to expanded use of risk assessment information; (2) making a decision on how to modify a regulation or regulated activity; (3) changing current regulatory approaches; (4) implementing risk-informed approaches; and (5) developing or adapting existing tools and techniques of risk analysis to the regulation of nuclear materials safety and safeguards.
Step one of the five-step process will be accomplished by applying screening criteria to regulatory application areas as a means to identify the candidate regulatory applications. To be a candidate for expanded use of risk information in NMSS, regulatory application areas must meet the screening criteria.
As part of the staff's effort to use an enhanced public participatory process in developing the framework, the staff held a public workshop in Washington, DC, on April 25 and 26, 2000. The staff published draft screening criteria in a
The workshop included participation by representatives from NRC, Environmental Protection Agency, Department of Energy, Occupational Safety and Health Administration, Organization of Agreement States, Health Physics Society, Nuclear Energy Institute, environmental and citizen groups, licensees, and private consultants. A consensus among the workshop participants was that case studies and iterative investigations would be useful for the following purposes: (1) To test the screening criteria, (2) to show how the application of risk information has affected or could affect a particular area of the regulatory process, and (3) to develop safety goal parameters and a first draft of safety goals for each area.
The purpose of the case studies is (1) to illustrate what has been done and what could be done in NMSS to alter the regulatory approach in a risk-informed manner, and (2) to establish a framework for using a risk-informed approach in NMSS by testing the draft screening criteria, and determining the feasibility of safety goals. Once the screening criteria have been tested using a spectrum of case studies, the criteria can be modified as appropriate, placed in final form, and established as part of the framework for prioritizing the use of risk information in NMSS regulatory applications.
The case studies will also be used to begin the process of developing safety goals for NMSS applications. Specifically, safety goal parameters (
All case studies will have these general objectives. However, certain case studies may have specialized objectives. For example, as one type of test of the screening criteria, a case study will be chosen in an area that the staff intuitively feels might not pass the screening criteria. These additional objectives are discussed in the case study outline which is included in this plan.
The intent of the case studies is not to reopen or reassess previous decisions made by the staff and the Commission. The information gained by performing the case studies may impact future decisions to be made by the staff and the Commission.
Questions have been developed for each case study to answer. Answering these questions will guide the case studies to meet the objectives outlined below. Each case study will be of limited scope, but collectively, the case studies will cover a broad spectrum of NMSS regulatory applications. The case studies have been selected in areas that the staff believes would specifically help in establishing a framework, as well as areas that would help to set the groundwork for establishing safety goals.
Case studies will have the following objectives: (1) Objective 1—Produce a final version of the NMSS screening criteria. (2) Objective 2—Illustrate how the application of risk information has improved or could improve a particular area of the NMSS regulatory process. (3) Objective 3—Determine the feasibility of safety goals in a particular area. If feasible, develop safety goal parameters, and a first draft of safety goals. If infeasible, document the reasons.
Draft screening criteria were published in the
1. Would a risk-informed regulatory approach help to resolve a question with respect to maintaining or improving the activity's safety?
2. Could a risk-informed regulatory approach improve the efficiency or the effectiveness of the NRC
3. Could a risk-informed regulatory approach reduce unnecessary regulatory burden for the applicant or licensee?
4. Would a risk-informed approach help to effectively communicate a regulatory decision or situation?
If the answer to any of the above is yes, proceed to additional criteria; if not, the activity is considered to be screened out.
5. Do information (data) and analytical models exist that are of sufficient quality or could they be developed to support risk-informing a regulatory activity?
If the answer to criterion 5 is yes, proceed to additional criteria; if not, the activity is considered to be screened out.
6. Can startup and implementation of a risk-informed approach be realized at a reasonable cost to the NRC,
If the answer to criterion 6 is yes, proceed to additional criteria; if not, the activity is considered to be screened out.
7. Do other factors exist (e.g., legislative, judicial, adverse stakeholder reaction) which would preclude changing the regulatory approach in an area, and therefore, limit the utility of implementing a risk-informed approach?
If the answer to criterion 7 is no, a risk-informed approach may be implemented; if the answer is yes, the activity may be given additional consideration or be screened out.
Success of the case studies will be measured by the following: (1) If, based on the testing of the draft screening criteria, final screening criteria are established, the case studies will, collectively, meet Objective 1; (2) if a case study can illustrate how the application of risk information has affected or could affect and improve a particular area of the regulatory process, the case study will meet Objective 2; and (3) if a case study can determine the feasibility of establishing safety goals, and if feasible, develop the necessary safety goal parameters and a first draft of goals, the case study will meet Objective 3.
When completed, the staff will present the results of the spectrum of case studies to the Commission.
I. Revise draft screening criteria based on workshop and other suggestions (completed prior to September 21, 2000, meeting).
II. Meet with the NRC historian.
III. Review tables from the NRC-EPA risk harmonization effort and other sources such as the National Academy of Sciences study to uncover any implicit objectives (goals) under the existing regulatory framework. Glean insights on any potential underlying safety goals.
IV. Case Study Areas.
A. Gas Chromatographs (new and old designs, the line between general licenses and specific licenses for almost identical devices is unclear—illustrate how the application of risk information could improve a particular area of the regulatory process)
B. Fixed Gauges (some are specifically licensed, and others are under a general license; regulatory criteria for general versus specific license are not based on risk—illustrate how the application of risk information could improve a particular area of the regulatory process; also, this could be a test case for a safety goal on property damage)
C. Site Decommissioning—the study may focus on certain well decommissioning incidents and certain selected sites (elements of implied safety goals may be found in Commission decisions)
D. Uranium Recovery Facilities (gaps in the regulations may be found; helpful in testing the screening criteria; if determined to be a good candidate for using risk, develop and use risk information for new Part 41 rulemaking effort)
E. Radioactive Material Transportation (elements of existing, implicit safety goals may be found in Commission decisions; public confidence and communication issue)
F. Part 76 (decide to use expanded risk information for gaseous diffusion plants or document the reasons why risk information will not improve the regulatory process in this area—contrast with new Part 70 approach; this decision-making process will be a good test for the draft screening criteria and will help establish consistency in applying risk information across NMSS programs; also, possibly an area to look at chemical risks.)
G. Spent Fuel Interim Storage (study probabilistic hazards analysis exemptions and proposed rulemaking—implicit safety goals may be found; public confidence issues and burden considerations)
H. Static Eliminators (public confidence issue; risk communication issue—regulatory changes were made even though perceived risk was low)
V. Case Study Structure.
A. Develop a set of questions for all case studies to answer.
B. Select a case-specific contact in each NMSS Division; obtain agreement with the Divisions on participation.
C. Public meeting to announce our plan for case studies (September 21, 2000).
D. Make any necessary revisions to plan based on input from public meeting.
E. Develop detailed approach and timeline for each case study including the need and level of involvement of contractor support.
F. Begin work on case studies.
G. Test screening criteria for each case study.
H. Answer all questions for each case study.
I. Meet with case-specific stakeholders as input to case studies.
J. Develop recommendations for safety goals (will be done in parallel with above).
K. Document results.
L. Conduct public meeting to present results of case studies.
M. Inform Commission of results.
VI. Assess the Outcome and Develop a Plan to Move Forward.
A. Screening criteria analysis/risk analysis questions:
1. What risk information is currently available in this area? (Have any specific risk studies been done?)
2. What is the quality of the study? (Is it of sufficient quality to support decision-making?)
3. What additional studies would be needed to support decision-making and at what cost?
4. How is/was risk information used and considered by the NRC and licensee in this area?
5. What is the societal benefit of this regulated activity?
6. What is the public perception/acceptance of risk in this area?
7. What was the outcome when this application was put through the draft screening criteria? Did this application pass any of the screening criteria? Does the outcome seem reasonable? Why or why not?
B. Safety goal analysis questions:
1. What is the basis for the current regulations in this area (
2. Are there any explicit safety goals or implicit safety goals embedded in the regulations, statements of consideration, or other documents (an example would be the acceptance of a regulatory exemption based in part on a risk analysis and the outcome)?
3. What was the basis for the development of the strategic goals, performance goals, measures and metrics? How are they relevant/applicable to the area being studied and how do they relate/compare with the regulatory requirements? How would they relate to safety goals in this area?
4. Are there any safety goals, limits, or other criteria implied by decisions or evaluations that have been made that are relevant to this area?
5. If safety goals were to be developed in this area, would tools/data be available for measurement?
6. Who are/were the populations at risk?
7. What are/were, and what could be/have been, the various consequences to the populations at risk?
8. What parameters should be considered for the safety goals (
9. On the basis of the answers to the questions above, would it be feasible to develop safety goals in this regulatory area?
10. What methods, data results, safety goals, or regulatory requirements would be necessary to make it possible to risk-inform similar cases?
C. Questions upon development of draft safety goals:
1. Are the current regulations sufficient in that they reflect the objectives of the draft goals? Would major changes be required?
2. Would the regulations need to be tightened?
3. Are the regulations overly conservative and/or too prescriptive with respect to the goals?
4. If these were the safety goals, what decisions would be made?
5. Would these goals be acceptable to the public?
The meeting will include a presentation of the draft plan and an opportunity for interested government agencies, organizations, and individuals to provide comments on the draft plan. Persons who wish to attend the meeting should contact Marissa Bailey no later than September 19, 2000.
For the Nuclear Regulatory Commission
Nuclear Regulatory Commission.
Extension of public comment period for Draft NUREG-1725.
The Nuclear Regulatory Commission is extending the public comment period for Draft NUREG-1725 “Human Interaction with Reused Soil: A Literature Search.”
Submit comments by November 17, 2000. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
Mail written comments to: David L. Meyer, Chief, Rules and Directives Branch, Office of Administration, Mail Stop T-6D59, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Copies of the Draft NUREG report can be obtained through the NRC website address:
Thomas J. Nicholson; e-mail:
The Nuclear Regulatory Commission (NRC) issued Draft NUREG-1725 “Human Interaction with Reused Soil: A Literature Search” on July 19, 2000 for a 60-day public comment period (closing date was originally September 18, 2000). Copies of the report were sent to Land-Grant University and selected Federal Agency libraries for review and comment. This activity is a joint effort by the NRC Staff and the National Agricultural Library (NAL) staff of the U.S. Department of Agriculture working under an Interagency Agreement with the NRC. The comment period is being extended for an additional 60 days to allow for responses from the Land-Grant University and Federal Agency libraries. The report presents the literature and INTERNET search strategies for identifying documented information sources on types of soil reuse. The report discusses how this information will be used to establish the technical bases for evaluating possible dose impacts from the reuse of soils from NRC-licensed facilities. Information received through the public comment process will assist the NRC staff in developing technical bases for characterizing soil reuse practices and related dose assessment scenarios.
Specifically, the NRC staff is seeking information through comments on Draft NUREG-1725 regarding potential uses of soil which may be excavated and transported offsite from NRC-licensed facilities for use in commerce or by the general public. This information will assist in developing a reasonably complete characterization of relevant usages for these reused soils. The soil reuse scenarios would include, but not be limited to, soil processing, construction and agricultural uses, and other commercial and residential uses of reused soil and soil-related products. The goal of the solicitation of comments on the Draft NUREG-1725 report is to further the development of technical bases and the supporting documentation that could be used to characterize the soil reuse scenarios.
For the Nuclear Regulatory Commission.
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 September 22, 2000, 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
Dominion Resources, Inc. (“Dominion”), 120 Tredegar Street, Richmond, Virginia 23219, a registered holding company, and its wholly owned subsidiary Consolidated Natural Gas Company (“CNG”), CNG Tower, 625 Liberty Avenue, Pittsburgh, PA 15222-3199, also a registered holding company (together, “Applicants”), have filed an application-declaration under section 12(c) of the Act and rules 46 and 54 under the Act.
On January 28, 2000, CNG became a wholly owned subsidiary of Dominion (“Merger”).
Applicants also seeks the ability to reorganize and restructure their nonutility businesses so that all nonutility subsidiaries engaged in similar activities can be part of the same intra-corporate grouping.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Securities and Exchange Commission (“Commission” or “SEC”).
Notice of application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 2(a)(32), 5(a)(1), and 22(d) of the Act and rule 22c-1 under the Act, and under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act.
Applicants request an order that would permit certain open-end management investment companies, whose portfolios will consist of the component securities of certain indices, to issue shares of limited redeemability; permit secondary market transactions in the shares of the companies at negotiated prices; and permit affiliated persons of the companies to deposit securities into, and receive securities from, the companies in connection with the purchase and redemption of aggregations of the companies' shares.
State Street Bank and Trust Company (the “Adviser”), ALPS Mutual Funds Services, Inc. and State Street Capital Markets, LLC, (each a “Distributor” and together the “Distributors”), The Select Sector SPDR Trust and The Index Exchange Listed Securities Trust (each a “Trust” and together the “Trusts”).
The application was filed on December 8, 1999 and amended on August 1, 2000. Applicants have agreed to file an amendment during the notice period, the substance of which is reflected in this notice.
An order granting the application will be issued unless the SEC orders a hearing. Interested persons may request a hearing by writing to the SEC's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the SEC by 5:30 p.m. on September 22, 2000, and should be accompanied by proof of service on applicants, in the form of an affidavit, or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issue contested. Persons may request notification of a hearing by writing to the SEC's Secretary.
Secretary, SEC, 450 Fifth Street, NW., Washington, DC 20549. Applicants, c/o Michael E. Gillespie, Vice President and Associate Counsel, State Street Bank and Trust Company, P.O. Box 1713, Boston, MA 02105-1713.
Marilyn Mann, Senior Counsel, at (202) 942-0582, or Mary Kay Frech, Branch Chief, at (202) 942-0564 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee from the SEC's Public Reference Branch, 450 5th Street, NW., Washington DC 20549-0102 (telephone (202) 942-8090).
1. Each Trust is an open-end management investment company organized as a Massachusetts business trust and registered under the Act. Each Trust has separate investment portfolios (each, a “Fund”). The Adviser acts as investment adviser and custodian for each Fund. ALPS Mutual Fund Services, Inc., a broker-dealer registered under the Securities Exchange Act of 1934 (the “Exchange Act”), serves as the principal underwriter of each Fund in The Select Sector SPDR Trust. State Street Capital Markets, LLC, a broker-dealer registered under the Exchange Act, serves as the principal underwriter for each Fund in The Index Exchange Listed Securities Trust. Each Distributor will distribute Fund shares on an agency basis.
2. The Trusts currently have 10 Funds operating under the terms of a prior order
3. In the future, the applicants may offer additional Funds (“Future Funds”) based on other Indices. Applicants request that the order apply to any Future Funds. Any Future Funds will (a) be advised by the Adviser or an entity controlled by or under common control with the Adviser and (b) comply with the terms and conditions of the order. References in the application to “Funds” include the existing Funds, the proposed Funds and any Future Funds. No entity that creates, compiles, sponsors or maintains an Index is or will be an affiliated person, as defined in section 2(a)(3) of the Act, or an affiliated person of an affiliated person, of the Trust, the Adviser, the Distributors or any sub-adviser to a Fund.
4. The investment objective of each Fund will be to provide investment results that correspond, before expenses, generally to the price and yield performance of its relevant Index. A Fund may not hold all of the underlying securities that comprise an Index in certain instances. When a potential component security is illiquid or when there are substantial costs involved in matching an Index with hundreds of component securities, a Fund may hold a representative sample of the component securities of the Index determined using a technique known as “portfolio optimization.”
5. Shares of a Fund (“Shares”) will be issued in aggregations of at least 50,000 Shares (“Creation Units”). The price of a Creation Unit will be approximately $3,800,000 to $6,300,000 (based on the values of the Indices as of June 30, 2000). Orders to purchase Creation Units must be placed by or through an “Authorized Participant,” which is either (a) a “Participating Party,” (
The AMEX will disseminate every 15 seconds throughout the trading day via the facilities of the Consolidated Tape Association an amount representing on a per Share basis the sum of the current value of the Deposit Securities and, when applicable to the Fund, the Dividend Equivalent Payment effective through and including the prior business day.
6. Orders to purchase Creation Units will be placed with the Distributor who will be responsible for transmitting the orders to each Fund. The Distributor will issue confirmations of acceptance, issue delivery instructions to the Fund to implement the delivery of Creation Units, and maintain records of the orders and the confirmations. The Distributor also will be responsible for delivering prospectuses to purchasers of Creation Units.
7. Persons purchasing Creation Unit-size aggregations of Shares from a Fund may hold the Shares or sell some or all of them in the secondary market. Shares will be listed on the AMEX and traded in the secondary market in the same manner as other equity securities. An AMEX specialist will be assigned to
8. Applicants expect that purchasers of Creation Units will include institutional investors and arbitrageurs (which could include institutional investors). The AMEX specalist, in providing for a fair and orderly secondary market for Shares, also may purchase Creation Units for use in its market-making activities on the AMEX. Applicants expect that secondary market purchasers of Shares will include both institutional and retail investors.
9. Shares will not be individually redeemable. Shares will only be redeemable in Creation Unit-size aggregations through each Fund.
10. Because each Fund will redeem Creation Units in kind, a Fund will not have to maintain cash reserves for redemptions. This will allow the assets of each Fund to be committed as fully as possible to tracking its Index. Accordingly, applicants state that each Fund will be able to track its Index more closely than certain other investment products that must allocate a greater portion of their assets for cash redemptions.
11. Applicants state that neither Trust nor any Fund will be marketed or otherwise held out as a “mutual fund.” Rather, applicants state that each Fund will be marketed as an “exchange-traded fund.” No Fund marketing materials (other than as required in the prospectus) will refer to a Fund as an “open-end” or “mutual fund,” except to contrast a Fund with a conventional open-end management investment company. In all marketing materials where the method of obtaining, buying or selling Shares is described, applicants will include a statement to the effect that Shares are not redeemable through a Fund except in Creation Units. The same type of disclosure will be provided in each Fund's prospectus, SAI, advertising materials, and all reports to shareholders.
1. Applicants request an order under section 6(c) of the Act granting an exemption from sections 2(a)(32), 5(a)(1), and 22(d) of the Act and rule 22c-1 under the Act; and under sections 6(c) and 17(b) of the Act granting an exemption from sections 17(a)(1) and 17(a)(2) of the Act.
2. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction, or any class of persons, securities, or transactions, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
3. Section 5(a)(1) of the Act defines an “open-end company” as a management investment company that is offering for sale or has outstanding any redeemable security of which it is the issuer. Section 2(a)(32) of the Act defines a redeemable security as any security, other than short-term paper, under the terms of which the holder, upon its presentation to the issuer, is entitled to receive approximately his proportionate share of the issuer's current net assets or the cash equivalent. Because Shares will not be individually redeemable, applicants request an order that would permit each Trust to register and operate as an open-end management investment company. Applicants state that investors may purchase Shares in Creation Units from each Fund and redeem Creation Units. Applicants further state that because the market price of Creation Units will be disciplined by arbitrage opportunities, investors should be able to sell Shares in the secondary market at prices that do not vary substantially from their NAV.
4. Section 22(d) of the Act, among other things, prohibits a dealer from selling a redeemable security that is being currently offered to the public by or through an underwriter, except at a current public offering price described in the prospectus. Rule 22c-1 under the Act generally requires that a dealer selling, redeeming, or repurchasing a redeemable security do so only at a price based on NAV. Applicants state that secondary market trading in Shares will take place at negotiated prices, not at a current offering price described in the prospectus, and not at a price on NAV. Thus, purchases and sales of Shares in the secondary market will not comply with section 22(d) and rule 22c-1. Applicants request an exemption from these provisions.
5. Applicants assert that the concerns sought to be addressed by section 22(d) and rule 22c-1 with respect to pricing are equally satisfied by the proposed method of pricing Shares. Applicants maintain that while there is little legislative history regarding section 22(d), its provisions, as well as those of rule 22c-1, appear to have been designed to (a) prevent dilution caused by certain riskless-trading schemes by principal underwriters and contract
6. Applicants believe that none of these purposes will be thwarted by permitting Shares to trade in the secondary market at negotiated prices. Applicants state (a) that secondary market trading in Shares does not involve the Funds as parties and cannot result in dilution of an investment in Shares, and (b) to the extent different prices exist during a given trading day, or from day to day, such variances occur as a result of third-party market forces, such as supply and demand, not as a result of unjust or discriminatory manipulation. Therefore, applicants assert that secondary market transactions in Shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants contend that the proposed distribution system will be orderly because arbitrage activity will ensure that the difference between the market price of Shares and their NAV remains narrow.
7. Section 17(a) of the Act generally prohibits an affiliated person of a registered investment company, or an affiliated person of such a person, from selling any security to or purchasing any security from the company. Because purchases and redemptions of Creation Units will be “in-kind” rather than cash transactions, section 17(a) may prohibit affiliated persons of the Fund from purchasing or redeeming Creation Units. Because the definition of “affiliated person” or another person in section 2(a)(3)(A) of the Act includes any person owning five percent or more of an issuer's outstanding voting securities, every purchaser of a Creation Unit will be affiliated with a Fund so long as fewer than twenty Creation Units of the Fund are in existence. In addition, any person owning more than 25% of the Shares of a Fund may be deemed an affiliated person under section 2(a)(3)(C) of the Act. Applicants request an exemption from section 17(a) under sections 6(c) and 17(b), to permit such affiliated persons of the Funds to purchase and redeem Creation Units.
8. Section 17(b) authorizes the Commission to exempt a proposed transaction from section 17(a) if evidence establishes that the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching, and the proposed transaction is consistent with the policies of the registered investment company and the general provisions of the Act. Applicants contend that no useful purpose would be served by prohibiting the affiliated persons of a Fund described above from purchasing or redeeming Creation Units. The composition of a Fund Deposit made by a purchaser or the Fund Securities and Cash Redemption Amount given to a redeeming investor will be the same regardless of the investor's identity, and will be valued under the same objective standards applied to valuing the Portfolio Securities. Therefore, applicants state that “in kind” purchases and redemptions will afford no opportunity for the affiliated persons described above to effect a transaction detrimental to the other holders of its Shares. Applicants also believe that “in kind” purchases and redemptions will not result in abusive self-dealing or overreaching by affiliated persons of the Fund.
Applicants agree that any order of the SEC granting the requested relief will be subject to the following conditions:
1. Applicants will not register the Shares of any Future Fund by means of filing a post-effective amendment to a Trust's registration statement or by any other means, unless (a) applicants have requested and received with respect to such Future Fund, either exemptive relief from the Commission or a no-action letter from the Division of Investment Management of the Commission, or (b) the Future Fund will be listed on a national securities exchange without the need for a filing pursuant to rule 19b-4 under the Exchange Act.
2. Each Fund's prospectus will clearly disclose that, for purposes of the Act, Shares are issued by the Fund and that acquisition of Shares by investment companies is subject to the restrictions of section 12(d)(1) of the Act.
3. As long as each Trust operates in reliance on the requested order, the Shares of the Funds will be listed on a national securities exchange.
4. Neither the Trusts nor any Fund will be advertised or marketed as an open-end investment company or a mutual fund. Each Fund's prospectus will prominently disclose that the Shares are not individually redeemable and that owners of the Shares may acquire those Shares from the Trust and tender those Shares for redemption to the Trust in Creation Units only.
5. The website for each Trust, which will be publicly accessible at no charge, will contain the following information, or a per Share basis, for each Fund: (a) the prior business day's NAV and the reported closing price, and a calculation of the premium or discount of such price against such NAV; and (b) data in chart format displaying the frequency distribution of discounts and premiums of the daily closing price against the NAV, within appropriate ranges, for each of the four previous calendar quarters.
6. The prospectus and annual report for each Fund will also include: (a) the information listed in condition 6(b), (i) in the case of the prospectus, for the most recently completed year (and the most recently completed quarter or quarters, as applicable) and (ii) in the case of the annual report, for the immediately preceding five years, as applicable; and (b) the following data, calculated on a per Share basis for one, five and ten year periods (or life of the Funds): (i) the cumulative total return and the average annual total return based on NAV and market price, and (ii) the cumulative total return of the relevant Index.
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
The Amex proposes to establish a marketing fee for equity option transactions of specialists and registered options traders. The text of the proposed rule change is available at the principal office of the Amex.
In its filing with the Commission, the Amex included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Amex has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Amex proposes to establish a new equity option marketing fee on the transactions of specialists and registered options traders, designed to compete for order flow in equity options traded on the Exchange. The revenue that these marketing fees generate will be used to compete for order flow in equity options listed for trading on the Exchange. Through the program, the Exchange will collect a fee of $0.40 on every equity option contract that specialists and registered options traders execute on the Exchange. The Exchange will collect fees on all equity option transactions except for those options overlying Nasdaq-100 index shares. In addition, trades between registered options traders and trades between specialists and registered options traders will not be subject to the program.
The Exchange will collect the fees and then allocate the funds to all of the Exchange's specialists. The Exchange will allocate the funds among the specialists on a
The Amex will assess the new fee monthly, beginning as of July 1, 2000. The funds that the new fee generates will be segregated according to the station where the classes of options subject to the fee are traded, and will be made available to the specialist at the station where the funds were collected for the specialist's use in attracting orders in the classes of options traded at that station. Members who pay the new fees will also be able to participate in the order flow derived from the program. Accordingly, the Exchange believes that there will be a fair correlation between the costs that the members will pay for the marketing program and the benefits that they will receive from it.
The Exchange may provide administrative support to the specialists in such matters as keeping track of the number of qualified orders each firm directs to the Exchange, and making debits and credits to the accounts of the specialists and the firms to reflect the payments that are to be made. If the amount of the payment to be received by the order flow provider exceeds any fees owed to the Exchange, such amounts may be paid directly by the Exchange to the member order flow provider pursuant to payment parameters that the specialist establishes.
The Exchange believes that this proposal may raise issues similar to those raised by the payment-for-order-flow proposals that the Boston Stock Exchange,
The Exchange believes that the implementation of the program is necessary to promote the Exchange's competitiveness within the exchange-traded equity options marketplace. Any changes to this proposal, including those affecting the size of the fee or the inclusion or exclusion of any class of option in the program, will be subject to a separate filing with the Commission pursuant to Section 19(b)(3)(A)(ii) of the Act.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change will not impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing rule change establishes or changes a due, fee, or other charge imposed by the Exchange, it has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
The Commission has frequently raised serious concerns about payment for order flow and internalization.
Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549-0609. 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 Room. Copies of such filing will also be available for inspection and copying at the principal office of the Amex. All submissions should refer to File No. SR-AMEX-00-38 and should be submitted by September 28, 2000.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its fee schedule to require the Designated Primary Market-Maker (“DPM”), who transacts options on the reduced-value of the Nasdaq-100 Index (“MNS
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for 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.
On July 10, 2000, the Commission approved the listing and trading by the CBOE of the MNX product.
Currently, all DPMs are charged $0.19 per contract for transactions for their proprietary accounts. The Exchange proposes that the DPM trading the MNX product be charged an additional fee of $0.25 per contract, totaling $0.44 per contract. This new fee would be used to assist the Exchange in offsetting some of the royalty fees that the Exchange must pay to the Nasdaq Stock market (“Nasdaq”) for permission to trade the MNX product.
The Exchange believes that this new fee is reasonable and justified because the DPM for the MNX product has been awarded special status for the product (
The proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were either solicited or received.
The foregoing rule change establishes or changes a due, fee, or other charge imposed by the Exchange, and, therefore has become effective upon filing pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. 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 Room. Copies of such filing will also be available for inspection and copying at the principal office of the CBOE. All submissions should refer to the File No. SR-CBOE-00-33 and should be submitted by September 28, 2000.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its fee schedule to waive all customer fees for option transactions based on the reduced-value of the Nasdaq-100 Index (“MNX
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for 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.
On July 10, 2000, the Commission approved the listing and trading by the CBOE of the MNX product.
Specifically, the Exchange proposes to waive the transaction fee, trade match fee, floor brokerage fee and the retail automatic execution system (“RAES”) fee for public customer MNX options orders. The Exchange has decided to waive these fees to promote the launch of the MNX product, and may determine to reevaluate the fee waiver at a future time. The Exchange believes these fee waivers will serve to make MNX options competitive with competing products at other exchanges while generating significant savings for its customers.
The proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were solicited or received.
The foregoing rule change establishes or changes a due, fee, or other charge imposed by the Exchange and, therefore has become effective upon filing pursuant to Rule 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. 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 Room. Copies of such filing will also be available for inspection and copying at the principal office of the CBOE. All submissions should refer to the File No. SR-CBOE-00-39 and should be submitted by September 27, 2000.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NASD Regulation is proposing to amend Rule 2860 of the NASD, to: (1) Apply the NASD's options position and exercise limits to members that effect trades for non-member brokers and non-members dealers; (2) require members to report the options positions that they effect for non-member brokers and non-member dealers where such positions meet the reporting thresholds under NASD rules; (3) codify an interpretative position with respect to which firms are required to report standardized options positions under the NASD's options position reporting requirements; and (4) clarify that a member may have its clearing firm report options positions to the NASD.
The text of the proposed rule is available at the Office of NASD Regulation and at the Commission.
In its filing with the Commission, NASD Regulation 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 Regulation has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The NASD's options position limits, exercise limits, and reporting requirements, Rules 2860(b)(3), 2860(b)(4) and 2860(b)(5), respectively, apply to any account in which a member, or any partner, officer, director or employee of the member has an interest, or for the account of any customer. However, because the NASD's definition of “customer” excludes a broker or dealer, non-member brokers and non-member dealers are currently outside the scope of these rules.
In addition, NASD Regulation proposes several technical amendments to the options position reporting requirements to take into account staff interpretive positions with respect to reporting standardized and conventional options. Specifically, the
Finally, NASD Regulation proposes an amendment to clarify that, consistent with current practices, a member may report positions directly to the Association or have such positions reported to the Association by another firm, such as the member's clearing firm. The amendment is accomplished by using the phrase “file or cause to be filed.” This amendment would not eliminate the member's ultimate responsibility to ensure that the firm reporting the positions on the member's behalf makes the necessary filings with the NASD.
NASD Regulation represents that the proposed rule change is consistent with the provisions of Section 15A(b)(6)
NASD Regulation 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. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. 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 Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to SR-NASD-00-36 and should be submitted by September 28, 2000.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Coast Guard, DOT.
Notice of meeting.
The Lower Mississippi River Waterway Safety Advisory Committee (LMRWSAC) will meet to discuss various issues relating to navigational safety on the Lower Mississippi River and related waterways. The meeting will be open to the public.
LMRWSAC will meet on Tuesday, October 3, 2000, from 9 a.m. to 12 noon. This meeting may close early if all business is finished. Written material and requests to make oral presentations should reach the Coast Guard on or before September 25, 2000. Requests to have a copy of your material distributed to each member of the committee should reach the Coast Guard on or before September 25, 2000.
LMRWSAC will meet in the basement conference room of the Hale Boggs Federal Building, 501 Magazine Street, New Orleans, LA. Send written material and requests to make oral presentations to M. M. Ledet, Committee Administrator, c/o Commander, Eighth Coast Guard District (m), 501 Magazine Street, New Orleans, LA 70130-3396. This notice is available on the Internet at http://dms.dot.gov.
For questions on this notice, contact M. M. Ledet, Committee Administrator, telephone (504) 589-6271, Fax (504) 589-4999.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. 2.
(1) Introduction of committee members.
(2) Election of Committee Chairman & Vice Chairman
(3) Remarks by RADM P. Pluta, Committee Sponsor.
(4) Approval of the April 26, 2000 minutes.
(5) Old Business: VTS Update and PORTS Update reports.
(6) New Business:
(7) Next meeting.
(8) Adjournment.
The meeting is open to the public. Please note that the meeting may close early if all business is finished. At the Chair's discretion, members of the public may make oral presentations during the meeting. If you would like to make an oral presentation at the meeting, please notify the Committee Administrator no later than September 25, 2000. Written material for distribution at the meeting should reach the Coast Guard no later than September 25, 2000. If you would like a copy of your material distributed to each member of the committee or subcommittee in advance of the meeting, please submit 28 copies to the Committee Administrator at the location indicated under Addresses no later than September 25, 2000.
For information on facilities or services for individuals with disabilities, or to request special assistance at the meetings, contact the Committee Administrator at the location indicated under Addresses as soon as possible.
Maritime Administration, Department of Transportation.
Extension of comment period.
The Maritime Administration (MARAD) is hereby giving notice that the closing date for comments in Docket No. MARAD-2000-7841, application of Marine Transport Corporation for written permission for temporary transfer to the coastwise trade of the integrated tug barge
By Order of the Maritime Administrator.
Research and Special Programs Administration (RSPA), DOT.
Notice and request for public comments.
This notice requests public participation in the Office of Management and Budget (OMB) approval process for extension of an existing RSPA collection of information. RSPA intends to request OMB approval of information collection 2137-0596, National Pipeline Mapping System (NPMS) under the Paperwork Reduction Act of 1995 and 5 CFR Part 1320.
Comments on this notice must be received on or before November 6, 2000 to be assured of consideration.
Interested persons are invited to send comments in duplicate to the Dockets Facility, U.S. Department of Transportation, 400 Seventh St., SW., Washington, DC 20590-0001 or e-mail to http://dms.dot.gov. Please identify the docket and notice numbers shown in the heading of this notice.
Marvin Fell, (202) 366-6205, to ask questions about this notice, or write by e-mail to marvin.fell@rspa.dot.gov.
This document can be reviewed between 10 a.m.-5 p.m. Monday through Friday, except Federal holidays, at the Dockets Facility, U.S. Department of Transportation, Room PL-401, 400 Seventh St., SW., Washington, DC 20590.
Comments are invited on: (a) The need for the proposed collection of information for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques.
All timely written comments to this notice will be summarized and included in the request for OMB approval. Comments will be available to the public in the docket.
Research and Special Programs Administration (RSPA), DOT.
Advisory notice.
RSPA (we) is aware of an incident during transportation in which a fire occurred in a shipment of primary lithium batteries which are excepted from the Hazardous Materials Regulations (HMR). We are issuing this advisory notice to (1) inform persons of this incident and the potential hazards that shipments of lithium batteries may present while in transportation, (2) recommend actions to offerors and transporters to ensure the safety of such shipments, (3) provide information concerning the current requirements for the transportation of lithium batteries, (4) inform persons of recommendations that we received from the National Transportation Safety Board (NTSB) on the transportation of lithium batteries and our response to those recommendations, (5) inform persons of the actions we have taken to date and plan to take in the future to address the hazards of these batteries, and (6) provide information concerning initiatives being taken by members of the battery manufacturing and distribution industry to address concerns relating to transportation of these batteries.
John Gale or Eric Nelson, Office of Hazardous Materials Standards, RSPA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001, Telephone (202) 366-8553.
We recommend that offerors and transporters take precautions in the transportation of lithium batteries that are presently excepted from regulation as a hazardous material under 49 CFR 173.185 of the HMR (49 CFR parts 171-180) and Special Provision A45 of the International Civil Aviation Organization (ICAO) Technical Instructions for the Transport of Dangerous Goods by Air (Technical Instructions). On April 28, 1999, at Los Angeles International Airport (LAX), a shipment of two pallets of primary lithium batteries caught fire and burned after being off-loaded from a Northwest Airlines flight from Osaka, Japan. While the pallets were being handled by cargo handling personnel, the packages were damaged. This is believed to have initiated the subsequent fire. The fire was initially fought by Northwest employees with portable fire extinguishers and a fire hose. Each time the fire appeared to be extinguished, it flared up again.
The two pallets involved in the fire contained 120,000 non-rechargeable lithium primary batteries. These batteries contain small amounts of lithium metal. However, because of existing exceptions in the HMR and the ICAO Technical Instructions, these packages were excepted from all hazard communication requirements (
(1) Ensure that the batteries are packaged in a manner that conforms to the HMR, in packages capable of withstanding conditions normally encountered in transportation, including preventing the release of packaged contents or damage to the package which could make the batteries unsafe.
(2) Inform transporters that packages contain such batteries, and specify what actions should be taken if packages are damaged through package markings, shipping papers or other means.
We recommend that a transporter, especially an aircraft operator:
(1) Exercise care in handling of all packages to avoid damage, whether or not those packages are identified as containing hazardous materials.
(2) Remove any damaged packages containing lithium batteries from transportation until it is determined that the batteries are free from damage and can be appropriately repackaged and continue in transportation.
These recommendations are consistent with actions being taken voluntarily by members of the battery industry as discussed in more detail below.
Consistent with international standards, the HMR regulate lithium metal as a Division 4.3 (Dangerous When Wet) material and lithium batteries are regulated as Class 9 (miscellaneous) hazardous materials. However, many lithium batteries which meet certain conditions are excepted from other requirements in the HMR. All lithium batteries and cells must be designed or packed in a way as to prevent short-circuits under conditions normally encountered in transportation. Lithium batteries excepted from the HMR include liquid cathode batteries containing no more than 0.5 grams of lithium or lithium alloy per cell, or containing an aggregate quantity of no more than 1 gram of lithium or lithium alloy, and solid cathode batteries containing no more than 1 gram of lithium or lithium alloy per cell, or an aggregate quantity of no more than 2 grams of lithium or lithium alloy. Cells that contain 5 grams or less of lithium or lithium alloy and no more than 25 grams of lithium or lithium alloy per battery are also excepted from the HMR if they pass tests specified in the United Nations (UN) Manual of Tests and Criteria. Cells and batteries that do not meet the test requirements and cells and batteries that contain lithium and lithium alloys above these levels are subject to the HMR as a Class 9 material and must be packed in UN performance oriented packagings, and marked, labeled, and described on shipping papers in accordance with the HMR.
On November 16, 1999, the National Transportation Safety Board issued five safety recommendations to RSPA on the transportation of lithium batteries. The recommendations were issued as the result of the Safety Board's investigation of the incident that occurred on April 28, 1999, at LAX. The recommendations are as follows:
Copies of the November 16, 1999, NTSB letter and our response are in the public docket. A summary of our response appears in the next section of the preamble.
We responded to the NTSB in a letter dated March 29, 2000. In that response, we stated that we were re-evaluating both the hazards posed by lithium batteries in air transportation and the safety measures necessary to protect an aircraft and its occupants. Additional information is being collected from lithium battery manufacturers and Federal agencies with extensive experience with testing and the use of lithium batteries. DOT also intends to conduct experimental evaluations necessary to obtain information not available from other sources. Our investigation is studying both primary lithium batteries and rechargeable lithium batteries.
In our response to NTSB we stated that, taking into account the hazards that lithium batteries present in transportation, the unusual nature of the LAX incident, the number of lithium batteries that have been transported safely on passenger-carrying aircraft, and the potential economic consequences, we could not justify an immediate prohibition on the transportation of lithium batteries on passenger-carrying aircraft. We are, however, initiating alternative actions to address the risk lithium batteries present in air transportation. These alternative actions include developing and distributing information aimed at shippers and airline personnel on the potential hazards of lithium batteries, such as the information contained in this notice, and based on the findings of our evaluation, initiating rulemaking action as necessary to address the classification, hazard communication, packaging, and operational controls relating to lithium batteries. We have also notified the ICAO Dangerous Goods Panel of the LAX incident and have initiated proposals to amend the United Nations Recommendations on the Transport of Dangerous Goods.
We have met with representatives of the battery industry concerning actions being taken voluntarily by them to mitigate these hazards, as set forth in the following section.
Upon completion of our evaluation of lithium batteries, we will initiate any additional actions necessary to address the hazards posed by the transportation of lithium batteries.
To address the concerns described above while we are considering further regulatory action, companies from around the world involved in the manufacture and distribution of small lithium primary, and lithium ion lithium polymer rechargeable cells and batteries voluntarily are implementing a program to identify and provide information concerning these batteries. The activity is expected to result in modification of shipping practices associated with the vast majority of small lithium primary and lithium ion rechargeable cells and batteries. A summary of the program's elements, as provided to us by the these companies, is provided below:
Lithium, lithium ion and lithium polymer cells and batteries exempt from regulations under 49 CFR 173.185, Special Provision A45 of the ICAO Technical Instructions, and/or Special Provision 188 of the UN Recommendations on the Transport of Dangerous Goods Model Regulations (“covered products”) will be affected by this program.
Implementation will begin September 1, 2000. The full program is expected to be in place by February 1, 2001 and DOT will be provided a list of companies who are voluntarily complying.
Each shipment of covered products that is originated by a participating company and contains more than 20 new primary lithium cells or 10 new primary lithium batteries will be marked to identify its content and recommended response actions in the event of an accident or damage to packaging. The text will appear in both English and the language of the shipment's origin, and will state “Lithium batteries inside. Do not damage or mishandle this package. If package is damaged or mishandled, batteries must be quarantined, inspected, and repacked.” The label will include a toll free number to call in the event of an emergency.
Each shipment of covered products that is originated by a participating company and contains more than 40 new lithium ion or lithium polymer cells or more than 20 new lithium ion or lithium polymer multi-cell battery packs (regardless of the number of cells in each) will carry a label explicitly identifying its content and recommended response actions in the event of an accident or damage to packaging. The text will appear in both English and the language of the shipment's origin, and will state “Lithium ion rechargeable batteries inside. (No lithium metal.) In the event of fire, use Class B or C extinguisher. If package is damaged or mishandled, batteries must be quarantined, inspected, and repacked.”
Packages which are marked will not exceed 30 kg and will be UN 4G fiberboard boxes, at the Packing Group II performance level, or equivalent.
Participating companies will provide to air carriers, freight forwarders and other shippers involved in the air transportation of covered products brochures or similar documents that describe the covered products and packages, the physiochemical characteristics of covered products, the communications program, and safe shipment handling procedures for covered packages.
Research and Special Programs Administration, DOT.
Notice of Integrity Management Communication Team Meeting.
The Research and Special Programs Administration's (RSPA) Office of Pipeline Safety (OPS) hereby gives notice that the Integrity Management Communication Team will meet to discuss the content and delivery of pipeline information to be conveyed to local officials and members of the public in or near high consequence areas.
The meeting will be held on September 12, 2000.
Members of the public may attend the meeting at the Department of Transportation, Nassif Building, 400 Seventh Street, SW, Room 6200 Washington, DC 20590. An opportunity will be provided for the public to make short statements on the topics under discussion. Anyone wishing to make an oral statement or to participate by conference call should notify Mary Jo Cooney, (202) 366-4774, or Christina Sames, (202) 366-4561, no later than September 7, 2000. Those wishing to make an oral statement must notify OPS of the topic of the statement and the time requested for the presentation. Those wishing to participate by conference call will be notified of the call-in number prior to the meeting.
Mary Jo Cooney, OPS, (202) 366-4774, or Christina Sames, OPS, (202) 366-4561.
In connection with the proposed rule on Pipeline Integrity Management in High Consequence Areas, OPS plans to propose related rules governing operator communications with local public officials and agencies. To assist in this effort, the OPS Technical Advisory Committees created an Integrity Management Communications Subcommittee to focus on communications issues and to report back to the full Advisory Committee. OPS expanded this Subcommittee to form a team with equal representation from the public, government agencies, and the pipeline industry, and to consolidate several related efforts.
The Team will provide feedback, insight, and information to the Advisory Committee on the content and delivery of information conveyed to local officials and the public about pipeline operations, systems, and the risks they pose in or near high consequence areas. The Advisory Committee will provide pipeline communication recommendations to OPS for consideration in drafting the Integrity Management Communications rulemaking. The Team will also assist OPS in finalizing a primer to educate local officials on pipelines and their operations.
The topics for discussion for this meeting include discussions of the following: Information that is needed by various groups: landowners/tenants along pipeline rights-of-way; local and regional emergency response officials; excavators and the general public; review of existing materials used by pipeline operators for public education; results from a public awareness survey conducted by the American Petroleum Institute and focus groups sponsored by the Interstate Natural Gas Association of America; Office of Pipeline Safety website materials; information currently available under the Freedom of Information Act; and pending pipeline legislative proposals for community right-to-know.
Norfolk Southern Railway Company (NS) has agreed to grant overhead trackage rights to Canton Railroad Company (CTN) over approximately 150 feet of NS' track within its existing right-of-way, being four crossover tracks located between Stations 74+40 and 178+73, on the Southern Bear Creek Branch, and connecting CTN's East Main and West Main, in Baltimore City, MD.
CTN reported that it intends to consummate the transaction on September 1, 2000, or as soon thereafter as the parties may agree or notices to labor may be effective.
The purpose of the trackage rights is to permit CTN to facilitate a more efficient operation of a coal exporting facility served by NS in Baltimore. CTN states that it currently operates over NS' right-of-way at this location pursuant to local operating agreements relating to the yard operations of both railroads. The trackage rights will also allow rail traffic to move more expeditiously in the eastern Maryland region.
As a condition to this exemption, any employees affected by the trackage rights will be protected by the conditions imposed in
This notice is filed under 49 CFR 1180.2(d)(7). If it contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 33917, must be filed with the Surface Transportation Board, Office of the Secretary, Case Control Unit, 1925 K Street, NW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on Weston A. Park, P.O. Box 28364, 8424 Old Harford Road, Baltimore, MD 21234.
Board decisions and notices are available on our website at “WWW.STB.DOT.GOV.”
Bureau of Transportation Statistics, DOT.
Notice.
Class I and Class II motor carriers of property and household goods are required to file annual and quarterly reports with the Bureau of
Comments must be submitted by October 10, 2000.
Send comments to the DOT Dockets Management System. You may send them by mail or in person to the Docket Clerk, Docket No. BTS-99-5889, Department of Transportation, 400 Seventh Street, SW., Room PL-401, Washington, DC 20590. The Docket is open from 10 a.m. to 5 p.m., Monday through Friday, except federal holidays. If you wish to file comments using the Internet, you may use the DOT Dockets Management System website at http://dms.dot.gov. Please follow the instructions online for more information.
Comments should identify the docket number and be submitted in duplicate to the address listed above. Commenters wishing the Department to acknowledge receipt of their comments must submit with those comments a self-addressed stamped postcard on which the following statement is made: Comments on Docket BTS-99-5889. The Docket Clerk will date stamp the postcard and mail it back to the commenter.
David Mednick, K-1, Bureau of Transportation Statistics, 400 Seventh Street, SW., Washington, DC 20590; (202) 366-8871; fax: (202) 366-3640; e-mail: david.mednick@bts.gov.
BTS invites comments on the following:
• Clarksville Refrigerated Lines, Inc.—Reply to Request for Additional Information.
• Drug Transport, Inc.—Request for Reconsideration and Reply to Request for More Information.
• Schneider Transport, Inc., Schneider Tank Lines, Inc., Schneider National Carriers, Inc., Schneider National Bulk Carriers, Inc., Schneider Specialized Carriers, Inc.—Supplemental Request for Reconsideration.
You must use the DOT Dockets Management System if you wish to comment on these documents. Please follow the instructions listed above under
Veterans Benefits Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before October 10, 2000.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, (202) 273-8030 or FAX (202) 273-5981. Please refer to “OMB Control No. 2900-0001.”
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, Allison Eydt, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-4650. Please refer to “OMB Control No. 2900-0001” in any correspondence.
Office of Information and Technology, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before October 10, 2000.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, (202) 273-8030 or FAX (202) 273-5981. Please refer to “OMB Control No. 2900-0025” in any correspondence.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, Allison Eydt, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-4650. Please refer to “OMB Control No. 2900-0025” in any correspondence.
By direction of the Acting Secretary.
Board of Veterans' Appeals, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before October 10, 2000.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, (202) 273-8030 or FAX (202) 273-5981. Please refer to “OMB Control No. 2900-0042.”
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, Allison Eydt, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-4650. Please refer to “OMB Control No. 2900-0042” in any correspondence.
By direction of the Acting Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before October 10, 2000.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, (202) 273-8030 or FAX (202) 273-5981. Please refer to “OMB Control No. 2900-0051.”
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, Allison Eydt, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-4650. Please refer to “OMB Control No. 2900-0051” in any correspondence.
By direction of the Acting Secretary.
Office of Information and Technology, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before October 10, 2000.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, (202) 273-8030 or FAX (202) 273-5981. Please refer to “OMB Control No. 2900-0078” in any correspondence.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, Allison Eydt, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-4650. Please refer to “OMB Control No. 2900-0078” in any correspondence.
By direction of the Acting Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before October 10, 2000.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, (202) 273-8030 or FAX (202) 273-5981. Please refer to “OMB Control No. 2900-0262.”
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, Allison Eydt, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-4650. Please refer to “OMB Control No. 2900-0262” in any correspondence.
By direction of the Acting Secretary.
Office of Security and Law Enforcement, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before October 10, 2000.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, (202) 273-8030 or FAX (202) 273-5981. Please refer to “OMB Control No. 2900-0524.”
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, Allison Eydt, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-4650. Please refer to “OMB Control No. 2900-0524” in any correspondence.
By direction of the Acting Secretary.
Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C., 3501
Comments must be submitted on or before October 10, 2000.
Denise McLamb, Information Management Service (045A4), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, (202) 273-8030 or FAX (202) 273-5981. Please refer to “OMB Control No. 2900-0571.”
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
Most customer satisfaction surveys will be recurring so that NCA, OFM, and IG can create and maintain ongoing measures of performance and to determine how well VA meets customer service standards. Each collection of information will consist of the minimum amount of information necessary to determine customer needs and to evaluate each organization's performance. NCA expects to conduct 15 focus groups annually involving a total of 450 hours during the approval period. In addition, NCA expects to conduct mail surveys with a total annual burden of 8,000 hours and will distribute comment cards with a total annual burden of 208 hours. NCA also plans to conduct mail surveys with customers of specific programs (
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, Allison Eydt, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-4650. Please refer to “OMB Control No. 2900-0571” in any correspondence.
By direction of the Acting Secretary:
Department of the Army, DoD
Notice of proposed rule.
The Department of the Army hereby gives notice that it is adopting revised policy and procedures for implementing the National Environmental Policy Act of 1969 (NEPA) and Council on Environmental Quality (CEQ) Code of Federal Regulations (CFR) (40 CFR parts 1500-1508). These guidelines replace policy and procedures found in current Army Regulation 200-2, Environmental Effects of Army Actions. The revision is necessary to clarify and update the current regulation. Since the December 1988 update of this regulation, initiatives such as the National Performance Review (NPR) have streamlined the federal government through decentralization, reduction and simplification of regulations, and management of risk. This proposed rule strives to meet the spirit of the NPR, and Executive Order 12861, Elimination of One-Half of Executive Branch Internal Regulations, 11 September 1993.
Submit comments on or before November 6, 2000.
Army Environmental Policy Institute, 101 Marietta Street, Suite 3120, Atlanta, GA 30303-2716. Comments or requests for changes may be submitted on a Department of Defense Form 2028, Recommended Changes to Publications and Blank Forms.
Mr. Ronald Webster, Army Environmental Policy Institute (404) 880-6707.
This proposed rule revises policies and responsibilities for assessing the effect of Army actions (32 CFR part 651). The last major revision of this regulation was previously published in 53 FR 46324, November 16, 1988. Since that time, initiatives such as the National Performance Review have tended to streamline the Federal Government through decentralization, reduction and simplification of regulations.
The Regulatory Flexibility Act, 5, U.S.C. 601
The Department of the Army has considered the impact of the proposed regulation under the Regulatory Flexibility Act. It has been certified that the proposed rule will not have a significant economic impact on a substantial number of small entities.
This regulation does not involve the collection of information and therefore is not subject to the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3507).
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. This organization has determined that this rule has no federalism implications that warrant the preparation of a Federalism Assessment in accordance with Executive Order 13132.
This proposed rule is issued with respect to the National Environmental Policy Act of 1969 and therefore establishes Army's responsibilities for the early integration of environmental consideration into planning and decision-making. This proposal should not impact the provisions of Executive Order 12630 or the Private Property Rights Act.
This proposed rule is not a significant regulatory action pursuant to Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. The proposed revision is not a “major” rule within the meaning of Executive Order 12866. The effect on the economy will be less than $100 million. The proposal will not cause a major increase in costs or prices for consumers, individual industries, geographic regions, or Federal, State, or local government agencies. The proposal will not have a significant adverse impact on competition, employment, investment productivity, innovation, or on the ability of a United States-based enterprise to compete with foreign-based enterprises in domestic or export markets.
The proposed rule does not impose non-statutory unfunded mandates on small governments and is not subject to the requirements of the executive order.
This proposed rule is in compliance with the provisions and requirements of Executive Order 12988.
The proposed rule is issued with respect to existing environmental guidelines and laws. Therefore, the proposed rule should not directly impact this executive order.
This proposal does not impose an enforceable duty upon the private sector nor does it impose unfunded mandates on small governments and therefore is not subject to the requirements of the Unfunded Mandates Reform Act.
This regulation implements the National Environmental Policy Act of 1969 (NEPA), and establishes the Army's policies and responsibilities for the early integration of environmental considerations into planning and decision-making.
Pursuant to Section 801(a)(1)(A) of the Administrative Procedures Act as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, the Army will submit a report
Environmental impact statements, Environmental protection, Foreign relations, Natural resources.
For the reasons as set forth in the preamble, 32 CFR Part 651 is proposed to be revised to read as follows:
42 U.S.C. 4321
(a) This part implements the National Environmental Policy Act of 1969 (NEPA), setting forth the Army's policies and responsibilities for the early integration of environmental considerations into planning and decision-making.
(b) This part requires environmental analysis of Army actions affecting human health and the environment; providing criteria and guidance on actions normally requiring Environmental Assessments (EAs) or Environmental Impact Statements (EISs), and listing Army actions that are categorically excluded from such requirements, provided specific criteria are met.
(c) This part supplements the Code of Federal Regulations (CFR) (40 CFR parts 1500-1508) for Army actions, and must be read in conjunction with it.
(d) All Army acquisition programs must use this part in conjunction with Department of Defense (DOD) 5000.2-R (Mandatory Procedures for Major Defense Acquisition Programs and Major Automated Information Systems).
Required and related publications and referenced forms are listed in Appendix A of this part.
Abbreviations and special terms used in this part are explained in the glossary in appendix F of this part.
(a)
(1) Maintain liaison with the Office of the Secretary of Defense (OSD), Office of Management and Budget (OMB), Council on Environmental Quality (CEQ), Environmental Protection Agency (EPA), Congressional oversight committees, and other federal, state, and local agencies on Army environmental policies.
(2) Review NEPA training at all levels of the Army, including curricula at Army, DOD, other service, other agency, and private institutions; and ensure adequacy of NEPA training of Army personnel at all levels.
(3) Establish an Army library for EAs and EISs, which will serve as:
(i) A means to ascertain adherence to the policies set forth in this part, as well as potential process improvements; and
(ii) A technical resource for proponents and preparers of NEPA documentation.
(b)
(1) Under oversight of the ASA(I&E), execute those NEPA policy provisions contained herein that pertain to the ASA(AL&T) responsibilities in the Army materiel development process, as described in Army Regulation (AR) 70-1, Army Acquisition Policy.
(2) Prepare policy for the Army Acquisition Executive (AAE) to develop and administer a process of review and approval of environmental analyses during the Army materiel development process.
(3) Prepare research, development, test, and evaluation (RDT&E) and procurement budget justifications to support Materiel Developer (MATDEV) implementation of NEPA provisions.
(c)
(1) Administer a process to:
(i) Execute all those NEPA policy provisions contained herein that pertain to all acquisition category (ACAT) programs, projects, and products;
(ii) Ensure that Milestone Decision Authorities (MDAs), at all levels, assess the effectiveness of environmental analysis in all phases of the system acquisition process, including legal review of these requirements;
(iii) Establish resource requirements and program, plan, and budget exhibits for inclusion in annual budget decisions;
(iv) Review and approve NEPA documentation at appropriate times during materiel development, in conjunction with acquisition phases and milestone reviews as established in the Acquisition Strategy; and
(v) Establish NEPA responsibility and awareness training requirements for Army Acquisition Corps personnel.
(2) Ensure Program Executive Officers (PEOs) and direct-reporting Program Managers (PMs) will:
(i) Supervise assigned programs, projects, and products to ensure that each environmental analysis addresses all applicable environmental laws, executive orders, and regulations.
(ii) Ensure that environmental considerations are integrated into system acquisition plans/strategies, Test and Evaluation Master Plans (TEMPs) and Materiel Fielding Plans, system engineering reviews/Integrated Process Team (IPT) processes, and Overarching Integrated Process Team (OIPT) milestone review processes.
(iii) Coordinate environmental analysis with appropriate organizations to include environmental offices such as Army Acquisition Pollution Prevention Support Office (AAPPSO) and U.S. Army Environmental Center (USAEC) and operational offices and organizations such as testers (developmental/operational), producers, users, and disposal offices.
(3) Ensure Program, Project, Product Managers, and other MATDEVs will:
(i) Initiate the environmental analysis process prescribed herein upon receiving the project office charter to commence the materiel development process, and designate a NEPA point of contact (POC) to the Director of Environmental Programs (DEP).
(ii) Integrate the system's environmental analysis (including NEPA) into the system acquisition strategy, milestone review planning, system engineering, and preliminary design, critical design, and production readiness reviews.
(iii) Apply policies and procedures set forth in this regulation to programs and actions within their organizational and staff responsibility.
(iv) Coordinate with installation managers and incorporate comments and positions of others (such as the Assistant Chief of Staff for Installation Management (ACSIM) and environmental offices of the development or operational testers, producers, users, and disposers) into the decision-making process.
(v) Initiate the analysis of environmental considerations, assess the environmental consequences of proposed programs and projects, and undergo environmental analysis, as appropriate.
(vi) Maintain the administrative record of the program's environmental analysis in accordance with this regulation.
(vii) Coordinate with local citizens and other affected parties, and incorporate appropriate comments into NEPA analyses.
(viii) Coordinate with ASA(I&E) when NEPA analyses for actions under AAE purview require publication in the
(d)
(e)
(1) Encourage environmental responsibility and awareness among Army personnel to most effectively implement the spirit of NEPA.
(2) Establish and maintain the capability (personnel and other resources) to comply with the requirements of this part. This responsibility includes the provision of an adequately trained and educated staff to ensure adherence to the policies and procedures specified by this part.
(f)
(1) Advise Army agencies in the preparation of NEPA analyses, upon request.
(2) Review, as requested, NEPA analyses submitted by Army, other DOD components, and other federal agencies.
(3) Monitor proposed Army policy and program documents that have environmental implications to determine compliance with NEPA requirements and ensure integration of environmental considerations into decision-making and adaptive management processes.
(4) Propose and develop Army NEPA guidance pursuant to policies formulated by ASA(I&E).
(5) Support and defend Army NEPA requirements, if requested, through the Environmental Program Requirements (EPR) process.
(6) Provide NEPA process oversight, in support of ASA(I&E), and, as appropriate, technical review of NEPA documentation.
(7) Identify Army-wide NEPA requirements and shortfalls through analysis of Army programming and execution data, and develop and execute programs and initiatives to address them.
(8) Assist the ASA(I&E) in the evaluation of formal requests for the delegation of NEPA responsibilities on a case-by-case basis. This assistance will include:
(i) Determination of technical sufficiency of the description of proposed action and alternatives (DOPAA) when submitted as part of the formal delegation request (§ 651.7).
(ii) Coordination of the action with the MACOM requesting the delegation.
(iii) Drafting of the formal response from ASA(I&E) to the MACOM, varying from project to project (based upon the technical issues involved, the degree of public interest, the possibility of controversy, and other project-specific considerations).
(9) Periodically provide ASA(I&E) with a summary analysis and recommendations on needed improvements in policy and guidance to Army activities concerning NEPA implementation, in support of ASA(I&E) oversight responsibilities.
(10) Assist Headquarters proponents to fund and develop programmatic NEPA analyses to address actions that are Army-wide, where a programmatic approach would be appropriate to address the action.
(11) Designate a NEPA PM to coordinate the Army NEPA program and notify ASA(I&E) of the designation.
(12) Maintain manuals and guidance for NEPA analyses for major Army programs in hard copy and make this guidance available on the World Wide Web (WWW).
(13) Maintain a record of NEPA POCs in the Army, as provided by the MACOMs and other Army agencies.
(g)
(1) Apply policies and procedures herein to programs and actions within their staff responsibility except for state-funded operations of the Army National Guard (ARNG).
(2) Task the appropriate component with preparation of NEPA analyses and documentation.
(3) Initiate the preparation of necessary NEPA analyses, assess proposed programs and projects to determine their environmental consequences, and initiate NEPA documentation for circulation and review along with other planning or decision-making documents. These other documents include, as appropriate, completed DD Form 1391 (Military Construction Project Data), Case Study and Justification Folders, Acquisition Strategies, and other documents proposing or supporting proposed programs or projects.
(4) Coordinate appropriate NEPA analyses with ARSTAF agencies.
(5) Designate, record, and report to the DEP the identity of the agency's single POC for NEPA considerations.
(6) Assist in the review of NEPA documentation prepared by DOD and other Army or federal agencies, as requested.
(7) Coordinate proposed directives, instructions, regulations, and major policy publications that have environmental implications with the DEP.
(8) Maintain the capability (personnel and other resources) to comply with the requirements of this part and include provisions for NEPA requirements through the Program Planning and Budget Execution System (PPBES) process.
(h)
(i)
(j)
(k)
(l)
(1) Provide guidance on issuing public announcements such as Findings of No Significant Impact (FNSIs), Notices of Intent (NOIs), scoping procedures, Notices of Availability (NOAs), and other public involvement activities; and establish Army procedures for issuing/announcing releases in the FR.
(2) Review and coordinate planned announcements on actions of national interest with appropriate ARSTAF elements and the Office of the Assistant Secretary of Defense for Public Affairs (OASD(PA)).
(3) Assist in the issuance of appropriate press releases to coincide with the publication of notices in the FR.
(4) Provide assistance to MACOM and installation Public Affairs Officers (PAOs) regarding the development and release of public involvement materials.
(m)
(1) Provide guidance to proponents at all levels on issuing Congressional notifications on actions of national concern or interest.
(2) Review planned congressional notifications on actions of national concern or interest.
(3) Prior to (and in concert with) the issuance of press releases and publications in the FR, assist in the issuance of congressional notifications on actions of national concern or interest.
(n)
(1) Monitor proposed actions and programs within their commands to ensure compliance with this part, including mitigation monitoring, utilizing Environmental Compliance Assessment System (ECAS), Installation Status Report (ISR), or other mechanisms.
(2) Task the appropriate proponent with funding and preparation of NEPA documentation and involvement of the public.
(3) Ensure that any proponent at the MACOM level initiates the required environmental analysis early in the planning process and plans the preparation of necessary NEPA documentation.
(4) Assist in the review of NEPA documentation prepared by DOD and other Army or federal agencies, as requested.
(5) Maintain official record copies of all NEPA documentation for which they are the proponent, and file electronic copies of EAs and EISs with the Office of the DEP (ODEP).
(6) Provide coordination with Headquarters, Department of the Army (HQDA) for proposed actions that have either significant impacts requiring an EIS or are of national interest. This process will require defining the purpose and need for the action, alternatives to be considered, and other information, as requested by HQDA. It also must occur early in the process and prior to an irretrievable commitment of resources that will prejudice the ultimate decision or selection of alternatives (40 CFR 1506.1). When delegated signature authority by HQDA, this process also includes the responsibility for complying with this regulation and associated Army environmental policy.
(7) Approve and forward NEPA documentation, as appropriate, for actions under their purview.
(8) In the case of the Director, ARNG, or his designee, approve all federal NEPA documentation prepared by all ARNG activities.
(9) Ensure environmental information received from MATDEVs is provided to appropriate field sites to support site-specific environmental analysis and NEPA requirements.
(10) Designate a NEPA PM to coordinate the MACOM NEPA program and maintain quality control of NEPA
(11) Budget for resources to maintain oversight of NEPA and this part.
(o)
(1) Establish an installation (organizational) NEPA program and evaluate its performance through the Environmental Quality Control Committee (EQCC) as required by AR 200-1, Environmental Protection and Enhancement.
(2) Designate a NEPA PM to coordinate and manage the installation's NEPA program, integrating it into all activities and programs at the installation. The installation commander will notify the MACOM of the designation.
(3) Establish a process that ensures coordination with the MACOM, other installation staff elements (to include PAOs and tenants) and others to incorporate NEPA requirements early in the planning of projects and activities.
(4) Ensure that actions subject to NEPA are coordinated with appropriate installation organizations responsible for such activities as master planning, natural and cultural resources management, or other installation activities and programs.
(5) Ensure that funding for environmental analysis is prioritized and planned, or otherwise arranged by the proponent, and that preparation of NEPA analyses, including the involvement of the public, is consistent with the requirements of this part.
(6) Approve NEPA analyses for actions under their purview. The Adjutant General will review and endorse documents and forward to the NGB for final approval.
(7) Ensure the proponent initiates the NEPA analysis of environmental consequences and assesses the environmental consequences of proposed programs and projects early in the planning process.
(8) Assist in the review of NEPA analyses affecting the installation or activity, and those prepared by DOD and other Army or federal agencies, as requested.
(9) Provide information through the chain of command on proposed actions of national interest to higher headquarters prior to initiation of NEPA documentation.
(10) Maintain official record copies of all NEPA documentation for which they are the proponent and forward electronic copies of EISs and EAs through the MACOM to ODEP.
(11) Ensure that the installation proponents initiate required environmental analyses early in the planning process and plan the preparation of necessary NEPA documentation.
(12) Ensure NEPA awareness and/or training is provided for professional staff, installation-level proponents, and document reviewers (for example, master planning, range control, etc.).
(13) Solicit support from MACOMs, CBTDEVs, and MATDEVs, as appropriate, in preparing site-specific environmental analysis.
(14) Ensure that local citizens are aware of and, where appropriate, involved in NEPA analyses, and that public comments are seriously considered.
(15) Use environmental impact analyses to determine the best alternatives from an environmental perspective, and to ensure that these determinations are part of the Army decision process.
(p)
(1) Represent the Installation, MACOM, or activity Commander on NEPA matters.
(2) Advise the proponent on the selection, preparation, and completion of NEPA analyses and documentation. This approach will include oversight on behalf of the proponent to ensure adequacy and support for the proposed action, including mitigation monitoring.
(3) Develop and publish local guidance and procedures for use by NEPA proponents to ensure that NEPA documentation is procedurally and technically correct. (This includes approval of Records of Environmental Consideration (RECs).)
(4) Identify any additional environmental information needed to support informed Army decision-making.
(5) Budget for resources to maintain oversight with NEPA and this part.
(6) Assist proponents, as necessary, to identify issues, impacts, and possible alternatives and/or mitigations relevant to specific proposed actions.
(7) Assist, as required, in monitoring to ensure that specified mitigation measures in NEPA analyses are accomplished. This monitoring includes assessing the effectiveness of the mitigations.
(8) Ensure completion of agency and community coordination.
(q)
(1) Identify the proposed action, the purpose and need, and reasonable alternatives for accomplishing the action.
(2) Fund environmental analyses and prepare NEPA analyses and documentation for their proposed actions. This responsibility will include negotiation for matrix support and services outside the chain of command when additional expertise is needed to prepare, review, or otherwise support the development and approval of NEPA analyses and documentation. These NEPA costs may be borne by successful contract offerers.
(3) Ensure accuracy and adequacy of NEPA analyses, regardless of the author. This work includes incorporation of comments from appropriate servicing Army environmental and legal staffs.
(4) Ensure adequate opportunities for public review and comment on proposed NEPA actions, in accordance with applicable laws and EOs as discussed in § 651.13(a). This step includes the incorporation of public and agency input into the decision-making process.
(5) Ensure that NEPA analysis is prepared and staffed sufficiently to comply with the intent and requirements of federal laws and Army policy. These documents will provide enough information to ensure that Army decision makers (at all levels) are informed in the performance of their duties (40 CFR 1501.2, 1505.1). This result requires coordination and resolution of important issues developed during the environmental analysis process, especially when the proposed action may involve significant environmental impacts, and includes the incorporation of comments from an affected installation's environmental office in recommendations made to decision makers.
(6) Adequately fund and implement the decision including all mitigation actions and effectiveness monitoring.
(7) Prepare and maintain the official record copy of all NEPA analyses and documentation for which they are the proponent. This step will include the provision of electronic copies of all draft and final EISs and Records of Decision (RODs) to ODEP for forwarding to the Defense Technical Information Center
(8) Maintain the administrative record for the environmental analysis performed. The administrative record shall be retained by the proponent for a period of six years after completion of the action, unless the action is controversial or of a nature that warrants keeping it longer. The administrative record includes all documents and information used to make the decision. This administrative record should contain, but is not limited to, the following types of records:
(i) Technical information used to develop the description of the proposed action, purpose and need, and the range of alternatives.
(ii) Studies and inventories of affected environmental baselines.
(iii) Correspondence with regulatory agencies.
(iv) Correspondence with, and comments from, private citizens, Native American tribes, Alaskan Natives, local governments, and other individuals and agencies contacted during public involvement.
(v) Maps used in baseline studies.
(vi) Maps and graphics prepared for use in the analysis.
(vii) Affidavits of publications and transcripts of any public participation.
(viii) Other written records that document the preparation of the NEPA analysis.
(ix) An index or table of contents for the administrative record.
(9) Identify other requirements that can be integrated and coordinated within the NEPA process. After doing so, the proponent should establish a strategy for concurrent, not sequential, compliance; sharing similar data, studies, and analyses; and consolidating opportunities for public participation. Examples of relevant statutory and regulatory processes are given in § 651.13(e).
(10) Identify and establish partnerships with public agencies, private organizations, and individuals that may have an interest in or jurisdiction over a resource that might be impacted. These partnerships should be accomplished in cooperation with the Installation Environmental Offices in order to maintain contact and continuity with the regulatory and environmental communities. Applicable agencies include, but are not limited to:
(i) State Historic Preservation Officer.
(ii) Tribal Historic Preservation Officer.
(iii) U.S. Fish and Wildlife Service.
(iv) Regional offices of the EPA.
(v) State agencies charged with protection of the environment, natural resources, and fish and wildlife.
(vi) U.S. Army COE Civil Works functions, including Clean Water Act, Section 404, permitting and wetland protection.
(vii) National Marine Fisheries Service.
(viii) Local agencies and/or governing bodies.
(ix) Environmental interest groups.
(x) Minority, low-income, and disabled populations.
(xi) Tribal governments.
(xii) Existing advisory groups (for example, Restoration Advisory Boards, Citizens Advisory Commissions, etc.).
(11) Identify and coordinate, in concert with environmental offices, proposed actions and supporting environmental analyses with local and/or regional ecosystem management initiatives such as the Mojave Desert Ecosystem Management Initiative or the Chesapeake Bay Initiative.
(12) Review Army policies, including AR 200-1 (Environmental Protection and Enhancement), AR 200-3 (Natural Resources—Land, Forest, and Wildlife Management), and AR 200-4 (Cultural Resources Management) to ensure that the proposed action is coordinated with appropriate resource managers, operators, and planners, and is consistent with existing Army plans and their supporting NEPA analyses.
(13) Identify potential impacts to (and consult with as appropriate) American Indian, Alaskan Native, or Native Hawaiian lands, resources, or cultures (for example, sacred sites, traditional cultural properties, treaty rights, subsistence hunting or fishing rights, or cultural items subject to the Native American Graves Protection and Repatriation Act (NAGPRA)). All consultation shall be conducted on a Government-to-Government basis in accordance with the Presidential Memorandum on Government-to-Government Relations With Native American Tribal Governments (April 29, 1994) (3 CFR, 1994 Comp., p. 1007) and AR 200-4 (Cultural Resources Management). Proponents shall consider, as appropriate, executing Memoranda of Agreements (MOAs) with interested Native American groups and tribes to facilitate timely and effective participation in the NEPA process. These agreements should be accomplished in cooperation with Installation Environmental Offices in order to maintain contact and continuity with the regulatory and environmental communities.
(14) Review NEPA documentation that relies upon unfunded mitigations to determine if the NEPA analysis needs to be rewritten or updated. Such an update is required if the unfunded mitigation was used to support a FNSI. Additional public notice/involvement must accompany any rewrites.
(r)
(1) Ensure that NEPA requirements are understood and options incorporated in the Officer Foundation Standards (OFS).
(2) Integrate environmental considerations into doctrine, training, leader development, organization, materiel, and soldier (DTLOMS) processes.
(3) Include environmental expert representation on all Integrated Concept Teams (ICTs) involved in requirements determinations.
(4) Ensure that TRADOC CBTDEVs retain and transfer any environmental analysis or related data (such as alternatives analysis) to the MATDEV upon approval of a materiel need. This information and data will serve as the basis for the MATDEV's Acquisition Strategy and subsequent NEPA analyses.
(5) Ensure that environmental considerations are incorporated into the Mission Needs Statements (MNSs) and Operational Requirements Documents (ORDs).
(a) NEPA establishes broad federal policies and goals for the protection of the environment and provides a flexible framework for balancing the need for environmental quality with other essential societal functions, including national defense. The Army is expected to manage those aspects of the environment affected by Army activities; comprehensively integrating environmental policy objectives into planning and decision-making. Meaningful integration of environmental considerations is accomplished by efficiently and effectively informing Army planners and decision makers. The Army will use the flexibility of NEPA to ensure implementation in the most cost-efficient and effective manner. The depth of analyses and length of documents will be proportionate to the nature and scope of the action, the complexity and level of anticipated effects on important environmental resources, and the capacity of Army decisions to influence those effects in a
(b) The Army will actively incorporate environmental considerations into informed decision-making, in a manner consistent with NEPA. Communication, cooperation, and, as appropriate, collaboration between government and extra-government entities is an integral part of the NEPA process. Army proponents, participants, reviewers, and approvers will balance environmental concerns with mission requirements, technical requirements, economic feasibility, and long-term sustainability of Army operations. While carrying out its mission, the Army will also encourage the wise stewardship of natural and cultural resources for future generations. Decision makers will be cognizant of the impacts of their decisions on cultural resources, soils, forests, rangelands, water and air quality, fish and wildlife, and other natural resources under their stewardship, and, as appropriate, in the context of regional ecosystems.
(c) Environmental analyses will reflect appropriate consideration of non-statutory environmental issues identified by federal and DOD orders, directives, and policy guidance. Some examples are in § 651.13 (e). Potential issues will be discussed and critically evaluated during scoping and other public involvement processes.
(d) The Army will continually take steps to ensure that the NEPA program is effective and efficient. Effectiveness of the program will be determined by the degree to which environmental considerations are included on a par with the military mission in project planning and decision-making. Efficiency will be promoted through the following:
(1) Awareness and involvement of the proponent in the NEPA process.
(2) NEPA technical and awareness training, as appropriate, at all decision levels of the Army.
(3) Where appropriate, the use of programmatic analyses and tiering to ensure consideration at the appropriate decision levels, elimination of repetitive discussion, consideration of cumulative effects, and focus on issues that are important and appropriate for discussion at each level.
(4) Use of the scoping and public involvement processes to limit the analysis of issues to those which are of interest to the public and/or important to the decision-making at hand.
(5) Elimination of needless paperwork by focusing documents on the major environmental issues affecting those decisions.
(6) Early integration of the NEPA process into all aspects of Army planning, so as to prevent disruption in the decision-making process; ensuring that NEPA personnel function as team members, supporting the Army planning process and sound Army decision-making. All NEPA analyses will be prepared by an interdisciplinary team.
(7) Partnering or coordinating with agencies, organizations, and individuals whose specialized expertise will improve the NEPA process.
(8) Oversight of the NEPA program to ensure continuous process improvement. NEPA requirements will be integrated into other environmental reporting requirements, such as the ISR.
(9) Clear and concise communication of data, documentation, and information relevant to NEPA analysis and documentation.
(10) Environmental analysis of strategic plans based on:
(i) Scoping thoroughly with agencies, organizations, and the public;
(ii) Setting specific goals for important environmental resources;
(iii) Monitoring of impacts to these resources;
(iv) Reporting of monitoring results to the public; and
(v) Adaptive management of Army operations to stay on course with the strategic plan's specific resource goals.
(11) Responsive staffing through HQDA and the Secretariat. Documents and transmittal packages will be acted upon within 14 calendar days of receipt by the subject office. These actions will be approved and transmitted, if the subject material is adequate; or returned with comment in those cases where additional work is required. Cases where these policies are violated should be identified to ASA(I&E) for resolution.
(e) Army leadership and commanders at all levels are required to:
(1) Establish and maintain the capability (personnel and other resources) to ensure adherence to the policies and procedures specified by this regulation. This should include the use of the PPBES, EPR, and other established resourcing processes. This capability can be provided through the use of a given mechanism or mix of mechanisms (contracts, matrix support, and full-time permanent (FTP) staff), but sufficient FTP staff involvement is required to ensure:
(i) Army cognizance of the analyses and decisions being made; and
(ii) Sufficient institutional knowledge of the NEPA analysis to ensure that Army NEPA responsibilities (pre-and post-decision) are met. Every person preparing, implementing, supervising, and managing projects involving NEPA analysis must be familiar with the requirements of NEPA and the provisions of this part.
(2) Ensure environmental responsibility and awareness among personnel to most effectively implement the spirit of NEPA. All personnel who are engaged in any activity or combination of activities that significantly affect the quality of the human environment will be aware of their NEPA responsibility. Only through alertness, foresight, notification through the chain of command, and training and education will NEPA goals be realized.
(f) The worldwide, transboundary, and long-range character of environmental problems will be recognized, and, where consistent with national security requirements and U.S. foreign policy, appropriate support will be given to initiatives, resolutions, and programs designed to maximize international cooperation in protecting the quality of the world human and natural environment. Consideration of the environment for Army decisions involving activities outside the United States will be accomplished pursuant to Executive Order 12114 (Environmental Effects Abroad of Major Federal Actions, 4 January 1979), host country final governing standards, DOD Directive (DODD) 6050.7 (Environmental Effects Abroad of Major DOD Actions), DOD Instructions (DODIs), and the requirements of this part. An environmental planning and evaluation process will be incorporated into Army actions that may substantially affect the global commons, environments of other nations, or any protected natural or ecological resources of global importance.
(g) Army NEPA documentation must be periodically reviewed for adequacy and completeness in light of changes in project conditions.
(1) Supplemental NEPA documentation is required when:
(i) The Army makes substantial changes in the proposed action that are relevant to environmental concerns; or
(ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impact.
(2) This review requires that the proponent merely initiate another “hard look” to ascertain the adequacy of the previous analyses and documentation in light of the conditions listed in paragraph (g)(1) of this section. If this review indicates no need for new or supplemental documentation, a REC can be produced in accordance with this part. Proponents are required to periodically review existing NEPA
(h) Contractors frequently prepare EISs and EAs. To obtain unbiased analyses, contractors must be selected in a manner avoiding any conflict of interest. Therefore, contractors will execute disclosure statements specifying that they have no financial or other interest in the outcome of the project. The contractor's efforts should be closely monitored throughout the contract to ensure an adequate assessment/ statement and also avoid extensive, time-consuming, and costly analyses or revisions. Project proponents and NEPA program managers must be continuously informed and involved.
(i) When appropriate, NEPA analyses will reflect review for operations security principles and procedures, described in AR 530-1 (Operations Security (OPSEC)), on the cover sheet or signature page.
(j) Environmental analyses and associated investigations are advanced project planning, and will be funded from sources other than military construction (MILCON) funds. Operations and Maintenance Army (OMA), Operations and Maintenance, Army Reserve (OMAR), and Operations and Maintenance, Army National Guard (OMANG), RDT&E, or other operating funds are the proper sources of funds for such analysis and documentation. Alternative Environmental Compliance Achievement Program (non-ECAP) funds will be identified for NEPA documentation, monitoring, and other required studies as part of the MILCON approval process.
(k) Costs of design and construction mitigation measures required as a direct result of MILCON projects will be paid from MILCON funds, which will be included in the cost estimate and description of work on DD Form 1391, Military Construction Project Data.
(l) Response projects implemented in accordance with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or the Resource Conservation and Recovery Act (RCRA) will not require separate NEPA analysis as long as the effort is conducted in a manner that incorporates NEPA requirements. If the following conditions are not met, additional or separate NEPA analyses and documentation will be required. This will require that:
(1) Prior to analysis and evaluation, full and open public participation will be facilitated to elicit views regarding alternative remedies and to frame the issues to be addressed in the analyses (the scope of the study);
(2) Proposed and alternative remedies, including the No Action alternative, will be addressed evaluating the significance of impacts, including off-site effects, resulting from alternative remediation processes; and
(3) The resulting document, such as the Feasibility Study (FS) or Engineering Evaluation/Cost Analysis (EE/CA), will be circulated for public review and comment. This review will require a minimum of 30 days and consideration of public comments prior to a decision being made. This analysis must be performed by an interdisciplinary team and must address impacts on the human and natural environment.
(m) MATDEVs, scientists and technologists, and CBTDEVs are responsible for ensuring that their programs comply with NEPA as directed in this part.
(1) Prior to assignment of a MATDEV to plan, execute, and manage a potential acquisition program, CBTDEVs will retain environmental analyses and data from requirements determination activities, and Science and Technology (S&T) organizations will develop and retain data for their technologies. These data will transition to the MATDEV upon assignment to plan, execute, and manage an acquisition program. These data (collected and produced), as well as the decisions made by the CBTDEVs, will serve as a foundation for the environment, safety, and health (ESH) evaluation of the program and the incorporation of program-specific NEPA requirements into the Acquisition Strategy. Programmatic ESH evaluation is considered during the development of the Acquisition Strategy as required by DOD 5000.2-R for all ACAT programs. Programmatic ESH evaluation is a process, not a document and is, thus, not a NEPA document. It is a planning, programming, and budgeting strategy into which the requirements of this regulation are integrated. Environmental analysis must be a continuous process throughout the materiel development program. During this continuous process, NEPA analysis and documentation may be required to support decision-making prior to any decision that will prejudice the ultimate decision or selection of alternatives (40 CFR 1506.1). In accordance with DOD 5000.2.R, the MATDEV is responsible for environmental analysis of acquisition life-cycle activities (including disposal). Planning to accomplish these responsibilities will be included in the appropriate section of the Acquisition Strategy.
(2) MATDEVs are responsible for the documentation regarding general environmental effects of all aspects of the system (including operational fielding and disposal) and the specific effects for all activities for which he/she is the proponent.
(3) MATDEVs will include, in their Acquisition Strategy, provisions for developing and supplementing their NEPA analyses and documentation, and provide data to support supplemental analyses, as required, throughout the life cycle of the system. The MATDEV will coordinate with ASA (AL&T) or MACOM proponent office, ACSIM, and ASA(I&E), identifying NEPA analyses and documentation needed to support milestone decisions. This requirement will be identified in the Acquisition Strategy and the status will be provided to the ACSIM representative prior to milestone review. The Acquisition Strategy will outline the system-specific plans for NEPA compliance, which will be reviewed and approved by the appropriate MDA and ACSIM. Compliance with this plan will be addressed at Milestone Reviews.
(n) AR 700-142 requires that environmental requirements be met to support materiel fielding. During the development of the Materiel Fielding Plan (MFP), and Materiel Fielding Agreement (MFA), the MATDEV and the materiel receiving command will identify environmental information needed to support fielding decisions. The development of generic system environmental and NEPA analyses, including military construction requirements and new equipment training issues, will be the responsibility of the MATDEV. The development of site-specific environmental analyses and NEPA documentation (EAs/EISs), using generic system environmental analyses supplied by the MATDEV, will be the responsibility of the receiving Command.
(o) Army proponents are encouraged to draw upon the special expertise available within the Office of the Surgeon General (OSG) (including the U.S. Army Center for Health Promotion and Preventive Medicine (USACHPPM)), to identify and evaluate environmental health impacts, and other agencies, such as USAEC, can be used to assess potential environmental impacts). In addition, other special expertise is available in the Army, DOD, other federal agencies, state and local agencies, tribes, and other organizations and individuals. Their participation and assistance is also encouraged.
(a) NEPA analyses will be prepared by the proponent using appropriate resources (funds and manpower). The proponent, in coordination with the appropriate NEPA program manager, shall determine who, what, where, when, and how the document will be prepared. In cases where the document addresses impacts to an environment whose management is not in the proponents' chain of command (for example, installation management of a range for MATDEV testing or installation management of a fielding location), the proponent shall coordinate the analysis and preparation of the document and identify the resources needed for its preparation and staffing through the command structure of that affected activity.
(b) The approving official is responsible for approving NEPA documentation and ensuring completion of the action, including any mitigation actions needed. The approving official may be an installation commander; or, in the case of combat/materiel development, the MATDEV, MDA, or AAE.
(c) Approving officials may select a lead reviewer for NEPA analysis before approving it. The lead reviewer will determine and assemble the personnel needed for the review process. Funding needed to accomplish the review shall be negotiated with the proponent, if required. Lead reviewer may be an installation EC or a NEPA POC designated by an MDA for a combat/materiel development program.
(d) The most important document is the initial NEPA document being processed. After initial scoping, it is released to the public for review and comment (for example, a draft FNSI/EA or draft EIS). This document will be complete and accurate prior to public release. Army reviewers are accountable for ensuring thorough early review of draft NEPA analyses. Any organization that raises new concerns or comments during final staffing will explain why issues were not raised earlier. NEPA analyses requiring public release in the FR will be forwarded to ASA(I&E), through the chain of command, for review. This includes all EISs and all EAs that are of national interest or concern. The activities needed to support public release will be coordinated with ASA(I&E). Public release will not proceed without ASA(I&E) approval.
(e) Public release of NEPA analyses in the FR should be limited to EISs, or EAs that are environmentally controversial or of national interest or concern. When analyses address actions affecting numerous sites throughout the Continental United States (CONUS), the proponent will carefully evaluate the need for publishing an NOA in the FR, as this requires an extensive review process, as well as supporting documentation alerting EPA and members of Congress of the action. At a minimum, and depending on the proponent's command structure, the following reviews must be accomplished:
(1) The NEPA analysis must be reviewed by the MACOM Legal Counsel or TJAG, ACSIM, ASA(I&E), and Office of General Counsel (OGC).
(2) The supporting documentation must be reviewed by Office of the Chief of Legislative Liaison (OCLL) and Office of the Chief of Public Affairs (OCPA).
(3) Proponents must allow a minimum of 30 days to review the documentation and must allow sufficient time to address comments from these offices prior to publishing the NOA.
(4) The proponent may consider publishing the NOA in local publication resources near each site. Proponents are strongly advised to seek the assistance of the local environmental office and command structure in addressing the need for such notification.
(a) MACOMs can request delegation authority and responsibility for an EA of national concern or an EIS from ASA(I&E). The proponent, through the appropriate chain of command, and with the concurrence of environmental offices, forwards to HQDA (ODEP) the request to propose, prepare, and finalize an EA and FNSI or EIS through the ROD stage. The request must include, at a minimum, the following:
(1) A description of the purpose and need for the action.
(2) A description of the proposed action and a preliminary list of alternatives to that proposed action, including the “no action” alternative. This constitutes the DOPAA.
(3) An explanation of funding requirements, including cost estimates, and how they will be met.
(4) A brief description of potential issues of concern or controversy, including any issues of potential Army-wide impact.
(5) A plan for scoping and public participation.
(6) A timeline, with milestones for the EIS action.
(b) If granted, a formal letter will be provided by ASA(I&E) outlining extent, conditions, and requirements for the NEPA action. Only the ASA(I&E) can delegate this authority and responsibility. When delegated signature authority by HQDA, the MACOM will be responsible for complying with this part and associated Army environmental policy. This delegation, at the discretion of ASA(I&E), can include specific authority and responsibility for coordination and staffing of:
(1) EAs and FNSIs, and associated transmittal packages, as specified in § 651.35(e).
(2) NOIs, Preliminary Draft EISs (PDEISs), Draft EISs (DEISs), Final EISs (FEISs), RODs and all associated transmittal packages as specified in § 651.45(a)(1), (d)(1), (d)(2), (g), and (i), respectively. Such delegation will specify requirements for coordination with ODEP and ASA(I&E).
All NEPA documentation and supporting administrative records shall be retained by the proponent's office for a minimum of six years after signature of the FNSI/ROD or the completion of the action, whichever is greater. Copies of final EAs and EISs will be forwarded to ODEP for cataloging and retention in the Army NEPA library. The ACSIM shall retain a copy of each draft EIS (DEIS) until such time as the final EIS (FEIS) is approved. The FEIS will be retained until the proposed action and any mitigation program is complete or the information therein is no longer valid. The ACS(IM) shall forward copies of all FEISs to DTIC, the National Archives and Records Administration.
(a) The NEPA process is the systematic examination of possible and probable environmental consequences of implementing a proposed action. Integration of the NEPA process with other Army projects and program planning must occur at the earliest possible time to ensure that:
(1) Planning and decision-making reflect Army environmental values, such as compliance with environmental policy, laws, and regulations; and that these values are evident in Army decisions. In addition, Army decisions must reflect consideration of other requirements such as Executive Orders and other non-statutory requirements, examples of which are enumerated in § 651.13(e).
(2) Army and DOD environmental policies and directives are implemented.
(3) Delays and potential conflicts in the process are minimized. The public should be involved as early as possible to avoid potential delays.
(b) All Army decision-making that may impact the human environment will use a systematic, interdisciplinary approach that ensures the integrated use of the natural and social sciences, planning, and the environmental design arts (section 102(2)(a), Public Law 91-190, 83 Stat. 852, National Environmental Policy Act of 1969 (NEPA)). This approach allows timely identification of environmental effects and values in sufficient detail for concurrent evaluation with economic, technical, and mission-related analyses, early in the decision process.
(c) The proponent of an action or project must identify and describe all reasonable alternatives to the proposed action or project, taking a “hard look” at the magnitude of potential impacts of implementing the reasonable alternatives, and evaluating their significance. To assist in identifying reasonable alternatives, the proponent often consults the installation environmental office and appropriate federal, tribal, state, and local agencies, and the general public.
The general types of proposed actions requiring environmental impact analysis under NEPA include:
(a) Policies, regulations, and procedures (for example, Army and installation regulations).
(b) New management and operational concepts and programs, including logistics; RDT&E; procurement; personnel assignment; real property and facility management; and environmental programs such as Integrated Natural Resource Management Plan (INRMP), Integrated Cultural Resources Management Plan (ICRMP), and Integrated Pest Management Plan.
(c) Projects involving facilities construction.
(d) Operations and activities including individual and unit training, flight operations, overall operation of installations, or facility test and evaluation programs.
(e) Requests for licenses for operations or special material use, including a Nuclear Regulatory Commission (NRC) license, an Army radiation authorization, or Federal Aviation Administration air space request (new, renewal, or amendment), in accordance with AR 95-50.
(f) Materiel development, operation and support, disposal, and/or modification as required by DOD 5000.2-R.
(g) Transfer of significant equipment or property to the ARNG or Army Reserve.
(h) Research and development including areas such as genetic engineering, laser testing, and electromagnetic pulse generation.
(i) Leases, easements, permits, licenses, or other entitlement for use, to include donation, exchange, barter, or Memorandum of Understanding (MOU). Examples include grazing leases, grants of easement for highway right-of-way, and requests by the public to use land for special events such as air shows or carnivals.
(j) Federal contracts, grants, subsidies, loans, or other forms of funding such as Government-Owned, Contractor-Operated (GOCO) industrial plants or housing and construction via third-party contracting.
(k) Request for approval to use or store materials, radiation sources, hazardous and toxic material, or wastes on Army land. If the requester is non-Army, the responsibility to prepare proper environmental documentation may rest with the non-Army requester, who will provide needed information for Army review. The Army must review and adopt all NEPA documentation before approving such requests.
(l) Projects involving chemical weapons/munitions.
(m) Actions taken in response to the Resource Conservation and Recovery Act (RCRA) or the Comprehensive Environmental Recovery and Compensation Act (CERCLA) (see § 651.5(1)).
The following are the five broad categories into which a proposed action may fall for environmental review:
(a)
(b)
(c)
(d)
(e)
(a) The flow chart shown in Figure 1 summarizes the process for determining documentation requirements, as follows:
(1) If the proposed action qualifies as a CX (Subpart D of this part), and the screening criteria are met (§ 651.29), the action can proceed. Some CXs require a REC.
(2) If the proposed action is adequately covered within an existing EA or EIS, a REC is prepared to that effect. The REC should state the applicable EA or EIS title and date, and identify where it may be reviewed (§ 651.19). The REC is then attached to the proponent's record copy of that EA or EIS.
(3) If the proposed action is within the general scope of an existing EA or EIS, but requires additional information, a supplement is prepared, considering the new, modified, or missing information. Existing documents are incorporated by reference and conclusions are published as either a FNSI or NOI to supplement the EIS.
(4) If the proposed action is not covered adequately in any existing EA or EIS, or is of a significantly larger scope than that described in the existing document, an EA is prepared, followed by either a FNSI or NOI to prepare an EIS. Initiation of an EIS may proceed without first preparing an EA, if deemed appropriate by the proponent.
(5) If the proposed action is not within the scope of any existing EA or EIS, then the proponent must begin the preparation of a new EA or EIS, as appropriate.
(b) The proponent of a proposed action may adopt appropriate environmental documents (EAs or EISs) prepared by another agency (40 CFR 1500.4(n) and 1506.3). In such cases, the proponent will retain record keeping for RECs and RODs.
(a) For proposed actions and NEPA analyses involving classified information, AR 380-5 (Department of the Army Information Security Program) will be followed.
(b) Classification does not relieve a proponent of the requirement to assess and document the environmental effects of a proposed action.
(c) When classified information can be reasonably separated from other information and a meaningful environmental analysis produced, unclassified documents will be prepared and processed in accordance with this regulation. Classified portions will be kept separate and provided to reviewers and decision makers in accordance with AR 380-5.
(d) When classified information is such an integral part of the analysis of a proposal that a meaningful unclassified NEPA analysis cannot be produced, the proponent, in consultation with the appropriate security and environmental offices, will form a team to review classified NEPA analysis. This interdisciplinary team will include environmental professionals to ensure that the consideration of environmental effects will be consistent with the letter and intent of NEPA, including public participation requirements.
(a)
(1) The planning process will identify issues that are likely to have an effect on the environment, or to be controversial. In most cases, local citizens and/or existing advisory groups should assist in identifying potentially controversial issues during the planning process. The planning process also identifies minor issues that have little or no measurable environmental effect, and it is sound NEPA practice to reduce discussion of minor issues to help focus analyses.
(2) Decision makers will be informed of and consider the environmental consequences at the same time as other factors such as mission requirements, schedule, and cost. If permits or coordination are required (for example, Section 404 of the Clean Water Act, Endangered Species Act consultation, Section 106 of the National Historic Preservation Act (NHPA), etc.), they should be initiated at the scoping phase of the process and should run parallel to the NEPA process, not sequential to it. This practice is in accordance with the recommendations presented in the CEQ publication entitled “The National Environmental Policy Act: A Study of Its Effectiveness After Twenty-five Years.”
(3) NEPA documentation will accompany the proposal through the Army review and decision-making processes. These documents will be forwarded to the planners, designers, and/or implementers, ensuring that the recommendations and mitigations upon which the decision was based are being carried out. The implementation process will provide necessary feedback for adaptive environmental management; responding to inaccuracies or uncertainties in the Army's ability to accurately predict impacts, changing field conditions, or unexpected results from monitoring. The integration of NEPA into the ongoing planning activities of the Army can produce considerable savings to the Army.
(b)
(1)
(2)
(ii) A news release is required to publicize the availability of the EA and draft FNSI, and a simultaneous announcement that includes publication in the FR must be made by HQDA, if warranted (see § 651.14(a)). The 30-day waiting period begins at the time that the draft FNSI is publicized (40 CFR 1506.6(b)).
(iii) In cases where the 30-day comment period jeopardizes the project and the full comment period would provide no public benefit, the period may be shortened with appropriate approval by a higher decision authority (such as a MACOM). In no circumstances should the public comment period for an EA/draft FNSI be less than 15 days. A deadline and POC for receipt of comments must be included for receipt of comments in the draft FNSI and the news release.
(3)
(i) Not less than 45 days for public comment on DEISs (40 CFR 1506.10(c)).
(ii) Not less than 15 days for public availability of DEISs prior to any public hearing on the DEIS (40 CFR 1506.(c)(2)).
(iii) Not less than 90 days from filing the DEIS prior to any decision on the proposed action. These periods may run concurrently (40 CFR 1506.10(b) and (c)).
(iv) The time periods prescribed here may be extended or reduced in accordance with 40 CFR 1506.10(b)(2) and 1506.10(d).
(v) When variations to these time limits are set, the Army agency should consider the factors in 40 CFR 1501.8(b)(1).
(vi) The proponent may also set time limits for other procedures or decisions related to DEISs and FEISs as listed in 40 CFR 1501.8(b)(2).
(vii) Because the entire EIS process could require more than one year (Figure 2 in paragraph (b)(2)(i) of this section), the process must begin as soon as the project is sufficiently mature to allow analysis of alternatives and the proponent must coordinate with all staff elements with a role to play in the NEPA process. DEIS preparation and response to comments constitute the largest portion of time to prepare an FEIS.
(viii) A public affairs plan should be developed that provides for periodic interaction with the community. There is a minimum public review time of 90 days between the publication of the DEIS and the announcement of the ROD. Army EISs are not normally processed in so short a time due to the internal staffing required for this type of action. After the availability of the ROD is announced, the action may proceed. This announcement must be made through the FR for those EISs for which HQDA signs the ROD. For other EISs, announcements in the local press are adequate. Figure 2 in paragraph b(2)(i) of this section indicates typical and required time periods for EISs.
(c)
(2) Army proponents are normally required to prepare many types of management plans that must include or be accompanied by appropriate NEPA analysis. NEPA analysis for these types of plans can often be accomplished with a programmatic approach, creating an analysis that covers a number of smaller projects or activities. In cases where such activities are adequately assessed as part of these normal planning activities, a REC can be prepared for smaller actions that cite the document in which the activities were previously assessed. Care must be taken to ensure that site-specific or case-specific conditions are adequately addressed in the existing programmatic document before a REC can be used, and the REC must reflect this consideration. If additional analyses are required, they can “tier” off the original analyses, eliminating duplication. Tiering, in this manner, is often applicable to Army actions that are long-term, multi-faceted, or multi-site.
(d)
(2) The extent of the scoping process, including public involvement, will depend on several factors. These factors include:
(i) The size and type of the proposed action.
(ii) Whether the proposed action is of regional or national interest.
(iii) Degree of any associated environmental controversy.
(iv) Size of the affected environmental parameters.
(v) Significance of any effects on them.
(vi) Extent of prior environmental review.
(vii) Involvement of any substantive time limits.
(viii) Requirements by other laws for environmental review.
(ix) Cumulative impacts.
(3) Through scoping, many future controversies can be eliminated, and public involvement can be used to narrow the scope of the study, concentrating on those aspects of the analysis that are truly important.
(4) The proponent may incorporate scoping as part of the EA process, as well. If the proponent chooses a public involvement strategy, the extent of scoping incorporated is at the proponent's discretion.
(e)
(1) Clean Air Act, as amended (General Conformity Rule, 40 CFR parts 51 and 93).
(2) Endangered Species Act.
(3) NHPA, sections 106 and 110.
(4) NAGPRA (Public Law 101-601, 104 Stat. 3048).
(5) Clean Water Act, including Section 404(b)(1).
(6) American Indian Religious Freedom Act.
(7) Fish and Wildlife Coordination Act.
(8) Comprehensive Environmental Response, Compensation, and Liability Act.
(9) Resource Conservation and Recovery Act.
(10) Pollution Prevention Act.
(11) The Sikes Act, Public Law 86-797, 74 Stat. 1052.
(12) Federal Compliance with Right-to-Know Laws and Pollution Prevention Requirements (Executive Order 12856, 3 CFR, 1993 Comp., p. 616).
(13) Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (Executive Order 12898, 3 CFR, 1994 Comp., p. 859).
(14) Indian Sacred Sites (Executive Order 13007, 3 CFR, 1996 Comp., p. 196).
(15) Protection of Children From Environmental Health Risks and Safety Risks (Executive Order 13045, 3 CFR, 1997 Comp., p. 198).
(16) Federal Support of Community Efforts Along American Heritage Rivers (Executive Order 13061, 3 CFR, 1997 Comp., p. 221).
(17) Floodplain Management (Executive Order 11988, 3 CFR, 1977 Comp., p.117).
(18) Protection of Wetlands (Executive Order 11990, 3 CFR, 1977 Comp., p. 121).
(19) Environmental Effects Abroad of Major Federal Actions (Executive Order 12114, 3 CFR, 1979 Comp., p. 356).
(20) Invasive Species (Executive Order 13112, 3 CFR, 1999 Comp., p. 159).
(21) DODD 4700.4, Natural Resources Management Program, Integrated Natural Resources Management Plan (INRMP), Integrated Cultural Resources Management Plan (ICRMP).
(22) AR 200-3, Natural Resources—Land, Forest, and Wildlife Management.
(23) Environmental analysis and documentation required by various state laws.
(24) Any cost-benefit analyses prepared in relation to a proposed action (40 CFR 1502.23).
(25) Any permitting and licensing procedures required by federal and state law.
(26) Any installation and Army master planning functions and plans.
(27) Any installation management plans, particularly those that deal directly with the environment.
(28) Any stationing and installation planning, force development planning, and materiel acquisition planning.
(29) Environmental Noise Management Program.
(30) Hazardous waste management plans.
(31) Integrated Cultural Resource Management Plan as required by AR 200-4.
(32) Asbestos Management Plans.
(33) Integrated Natural Resource Management Plans.
(34) Environmental Baseline Surveys.
(35) Programmatic Environment, Safety, and Health Evaluation (PESHE) as required by DOD 5000.2-R and DA Pamphlet 70-3, Army Acquisition Procedures, supporting AR 70-1, Acquisition Policy.
(36) The DOD MOU to Foster the Ecosystem Approach signed by CEQ, and DOD, on 15 December 1995; establishing the importance of “non-listed,” “non-game,” and “non-protected” species.
(37) Other requirements (such as health risk assessments), when efficiencies in the overall Army environmental program will result.
(f)
(g)
(2) In some cases, local, state, regional, or tribal governments or agencies will have sufficient jurisdiction by law or special expertise with respect to reasonable alternatives or significant environmental, social, or economic impacts associated with a proposed
(h)
(1) The Army may be a cooperating agency (40 CFR 1501.6) in order to:
(i) Provide information or technical expertise to a lead agency.
(ii) Approve portions of a proposed action.
(iii) Ensure the Army has an opportunity to be involved in an action of another federal agency that will affect the Army.
(iv) Provide review and approval of EISs and RODs.
(2) Adequacy of an EIS is primarily the responsibility of the lead agency. However, as a cooperating agency with approval authority over portions of a proposal, the Army may adopt an EIS if review concludes the EIS adequately satisfies the Army's comments and suggestions.
(3) If the Army is a major approval authority for the proposed action, the appropriate Army official may sign the ROD prepared by the lead agency, or prepare a separate, more focused ROD. If the Army's approval authority is only a minor aspect of the overall proposal, such as issuing a temporary use permit, the Army need not sign the lead agency's ROD or prepare a separate ROD.
(4) The magnitude of the Army's involvement in the proposal will determine the appropriate level and scope of Army review of NEPA documents. If the Army is a major approval authority or may be severely impacted by the proposal or an alternative, the Army should undertake the same level of review as if it were the lead agency. If the involvement is limited, the review may be substantially less. The lead agency is responsible for overall supervision of the EIS, and the Army will attempt to meet all reasonable time frames imposed by the lead agency.
(5) If an installation (or other Army organization) should become aware of an EIS being prepared by another federal agency in which they may be involved within the discussion of the document, they should notify ASA(I&E) through the chain of command. ASA(I&E) will advise regarding appropriate Army participation as a cooperating agency, which may simply involve local coordination.
(a) Throughout the environmental analysis process, the proponent will consider mitigation measures to avoid or minimize environmental harm. Mitigation measures include:
(1) Avoiding the impact altogether, by eliminating the action or parts of the action.
(2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.
(3) Rectifying the impact; by repairing, rehabilitating, or restoring the adverse effect on the environment.
(4) Reducing or eliminating the impact over time, by preservation and maintenance operations during the life of the action.
(5) Compensating for the impact, by replacing or providing substitute resources or environments. (Examples and further clarification are presented in Appendix C of this part.)
(b) When the analysis proceeds to an EA or EIS, mitigation measures will be clearly assessed and those selected for implementation will be identified in the FNSI or the ROD. The proponent must implement those identified mitigations, because they are commitments made as part of the Army decision. The proponent is responsible for responding to inquiries from the public or other agencies regarding the status of mitigation measures adopted in the NEPA process. The mitigation shall become a line item in the proponent's budget or other funding document, if appropriate, or included in the legal document implementing the action (for example, contracts, leases, or grants). Only those practical mitigation measures that can reasonably be accomplished as part of a proposed alternative will be identified. Any mitigation measures selected by the proponent will be clearly outlined in the NEPA decision document, will be budgeted and funded (or funding arranged) by the proponent, and will be identified, with the appropriate fund code, in the EPR (AR 200-1). Mitigations will be monitored through environmental compliance reporting, such as the ISR (AR 200-1) or the Environmental Quality Report. Mitigation measures are identified and funded in accordance with applicable laws, regulations, or other media area requirements.
(c) Based upon the analysis and selection of mitigations that reduce impacts until they are no longer significant, an EA may result in a FNSI. If a proponent uses mitigations in such a manner, the FNSI must identify these mitigating measures, and they become legally binding and must be accomplished as the project is implemented. If these identified mitigations do not occur, potentially significant environmental effects are implied, and the proponent must publish an NOI and prepare an EIS.
(d) Mitigation measures that appear practical, but unobtainable within expected resources, or that some other agency (including non-Army agencies) should perform, will be identified in the NEPA analysis. A number of factors determine what is practical, including military mission, manpower restrictions, cost, institutional barriers, technical feasibility, and public acceptance. Practicality does not necessarily ensure resolution of conflicts among these items, rather it is the degree of conflict that determines practicality. Although mission conflicts are inevitable, they are not necessarily insurmountable; and the proponent should be cautious about declaring all mitigations impractical and carefully consider any manpower requirements. The key point concerning both the manpower and cost constraints is that, unless money is actually budgeted and manpower assigned, the mitigation does not exist. Coordination by the proponent early in the process will be required to allow ample time to get the mitigation activities into the budget cycle. The project cannot be undertaken until all required mitigation efforts are fully resourced, or until the lack of funding and resultant effects, are fully addressed in the NEPA analysis.
(e) Mitigations determined to be impractical must still be considered, including those to be accomplished by other agencies. The proponent must
(f) Proponents may request assistance with mitigation from cooperating non-Army agencies, when appropriate. Such assistance is appropriate when the requested agency was a cooperating agency during preparation of a NEPA document, or has the technology, expertise, time, funds, or familiarity with the project or the local ecology necessary to implement the mitigation measure more effectively than the lead agency.
(g) The proponent agency or other appropriate cooperating agency will implement mitigations and other conditions established in the EA or EIS, or commitments made in the FNSI or ROD. Legal documents implementing the action (such as contracts, permits, grants) will specify mitigation measures to be performed. Penalties against the contractor for noncompliance may also be specified as appropriate. Specification of penalties should be fully coordinated with the appropriate legal advisor.
(h) A monitoring and enforcement program for any mitigation will be adopted and summarized in the NEPA documentation (see Appendix C of this part for guidelines on implementing such a program). Whether adoption of a monitoring and enforcement program is applicable (40 CFR 1505.2c) and whether the specific adopted action requires monitoring (40 CFR 1505.3) may depend on the following:
(1) A change in environmental conditions or project activities assumed in the EIS (such that original predictions of the extent of adverse environmental impacts may be too limited);
(2) The outcome of the mitigation measure is uncertain (for example, new technology);
(3) Major environmental controversy remains associated with the selected alternative; or
(4) Failure of a mitigation measure, or other unforeseen circumstances, could result in a failure to meet achievement of requirements (such as adverse effects on federal or state listed endangered or threatened species, important historic or archaeological sites that are either listed or eligible for nomination to the National Register of Historic Places, wilderness areas, wild and scenic rivers, or other public or private protected resources). Proponents must follow local installation environmental office procedures to coordinate with appropriate federal, tribal, state, or local agencies responsible for a particular program to determine what would constitute “adverse effects.”
(i) Monitoring is an integral part of any mitigation system.
(1) Enforcement monitoring ensures that mitigation is being performed as described in the NEPA documentation, mitigation requirements and penalty clauses are written into any contracts, and required provisions are enforced. The development of an enforcement monitoring program is governed by who will actually perform the mitigation: a contractor, a cooperating agency, or an in-house (Army) lead agency. Detailed guidance is contained in Appendix C of this part. The proponent is ultimately responsible for performing any mitigation activities. All monitoring results will be sent to the installation Environmental Office; in the case of the Army Reserves, the Regional Support Commands (RSCs); and, in the case of the National Guard, the NGB.
(2) Effectiveness monitoring measures the success of the mitigation effort and/or the environmental effect. While quantitative measurements are desired, qualitative measures may be required. The objective is to obtain enough information to judge the effect of the mitigation. In establishing the monitoring system, the responsible agent should coordinate the monitoring with the Environmental Office. Specific steps and guidelines are included in Appendix C of this part.
(j) The monitoring program, in most cases, should be established well before the action begins, particularly when biological variables are being measured and investigated. At this stage, any necessary contracts, funding, and manpower assignments must be initiated. Technical results from the analysis should be summarized by the proponent and coordinated with the installation Environmental Office. Subsequent coordination with the concerned public and other agencies, as arranged through development of the mitigation plan, will be handled through the Environmental Office.
(k) If the mitigations are effective, the monitoring should be continued. If the mitigations are ineffective, the proponent and the responsible group should re-examine the mitigation measures, in consultation with the Environmental Office and appropriate experts, and resolve the inadequacies of the mitigation or monitoring. Professionals with specialized and recognized expertise in the topic or issue, as well as concerned citizens, are essential to the credibility of this review. If a different program is required, then a new system must be established. If ineffective mitigations are identified which were required to reduce impact below significance levels (§ 651.35(g)), the proponent may be required to publish an NOI and prepare an EIS (§ 651.15(b)).
(l) Environmental monitoring report. An environmental monitoring report is prepared at one or more points after program or action execution. Its purpose is to determine the accuracy of impact predictions. It can serve as the basis for adjustments in mitigation programs and to adjust impact predictions in future projects. Further guidance and clarification are included in Appendix C of this part.
(a) NEPA analyses must assess cumulative effects, which are the impact on the environment resulting from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. Actions by federal, non-federal agencies, and private parties must be considered (40 CFR 1508.7).
(b) The scoping process should be used to identify possible cumulative impacts. The proponent should also contact appropriate off-post officials, such as tribal, state, county, or local planning officials, to identify other actions that should be considered in the cumulative effects analysis.
(c) A suggested cumulative effects approach is as follows:
(1) Identify the boundary of each resource category. Boundaries may be geographic or temporal. For example, the Air Quality Control Region (AQCR) might be the appropriate boundary for the air quality analysis, while a watershed could be the boundary for the water quality analysis. Depending upon the circumstances, these boundaries could be different and could extend off the installation.
(2) Describe the threshold level of significance for that resource category. For example, a violation of air quality standards within the AQCR would be an appropriate threshold level.
(3) Determine the environmental consequence of the action. The analysis should identify the cause and effect relationships, determine the magnitude and significance of cumulative effects, and identify possible mitigation measures.
(a) Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and
(b) The Executive Order requires the proponent to:
(1) Identify minority populations and low-income populations or communities.
(2) Assess effects the proposed action may have on these populations and communities. This assessment should include input from local citizens (for example, existing advisory groups, community groups and leaders, etc.).
(3) Determine if these impacts are disproportionate.
(c) If a disproportionate impact is detected, the proponent will identify possible mitigation measures.
(d) Affected low income communities and minority communities must be included in the public participation aspects of NEPA, including scoping. In such cases, proactive efforts must be made to incorporate minority or low-income populations into the public participation requirements of NEPA. Environmental Justice (EJ) considerations must be considered in all Army EAs and EISs.
NEPA documentation will be prepared and published double-sided on recycled paper. The recycled paper symbol should be presented on the inside of document covers. The following records and documents are required:
A Record of Environmental Consideration (REC) is a signed statement submitted with project documentation that briefly documents that an Army action has received environmental review. RECs are prepared for CXs that require them, and for actions covered by existing or previous NEPA documentation. A REC briefly describes the proposed action and timeframe, identifies the proponent and approving official(s), and clearly shows how an action qualifies for a CX, or is already covered in an existing EA or EIS. When used to support a CX, the REC must address the use of screening criteria to ensure that no extraordinary circumstances or situations exist. A REC has no prescribed format, as long as the above information is included. To reduce paperwork, a REC can reference such documents as real estate Environmental Baseline Studies (EBSs) and other documents, as long as they are readily available for review. While a REC may document compliance with the requirements of NEPA, it does not fulfill the requirements of other environmental laws and regulations. Figure 3 illustrates a possible format for the REC as follows:
An Environmental Assessment (EA) is intended to assist agency planning and decision-making. It:
(a) Briefly provides the decision maker with sufficient evidence and analysis for determining whether a FNSI or an EIS should be prepared.
(b) Assures compliance with NEPA, if an EIS is not required and a CX is inappropriate.
(c) Facilitates preparation of an EIS, if required.
(d) Includes brief discussions of the need for the proposed action, alternatives to the proposed action (NEPA, section 102(2)(e)), environmental impacts, and a listing of persons and agencies consulted (see Subpart E of this part for requirements).
(e) The EA provides the proponent, the public, and the decision maker with sufficient evidence and analysis for determining whether environmental impacts of a proposed action are potentially significant. An EA is substantially less rigorous and costly than an EIS, but requires sufficient detail to identify and ascertain the significance of expected impacts associated with the proposed action and its alternatives. The EA can often provide the required “hard look” at the potential environmental effects of an action, program, or policy within no more than 20 pages, depending upon the nature of the action and project-specific conditions.
A Finding of No Significant Impact (FNSI) is a document that briefly states why an action (not otherwise excluded) will not significantly affect the environment, and, therefore, that an EIS will not be prepared. The FNSI includes a summary of the EA and notes any related NEPA documentation. If the EA is attached, the FNSI need not repeat any of the EA discussion, but may incorporate it by reference. The draft FNSI will be made available to the public for review and comment for 30 days prior to the initiation of an action, except in special circumstances when the public comment period is reduced to 15 days, as discussed in § 651.14(b)(2)(iii). Following the comment period and review of public comments, the proponent forwards a decision package that includes a comparison of environmental impacts associated with reasonable alternatives, summary of public concerns, revised FNSI (if necessary), and recommendations for the decision maker. The decision maker reviews the package, makes a decision, and signs the FNSI or the NOI (if the FNSI no longer applies). If a FNSI is signed by the decision maker, the action can proceed immediately.
A Notice of Intent (NOI) is a public notice that an EIS will be prepared. The NOI will briefly:
(a) Describe the proposed and alternative actions.
(b) Describe the proposed scoping process, including when and where any public meetings will be held.
(c) State the name and address of the POC who can answer questions on the proposed action and the EIS (see § 651.45(a) and § 651.49 for application).
An Environmental Impact Statement (EIS) is a detailed written statement required by NEPA for major federal actions significantly affecting the quality of the human environment (42 U.S.C. 4321). A more complete discussion of EIS requirements is presented in Subpart F of this part.
As detailed in § 651.5 and in 40 CFR 1502.9(c), proposed actions may require review of existing NEPA documentation. If conditions warrant a supplemental document, these documents are processed in the same way as an original EA or EIS. No new scoping is required for a supplemental EIS filed within one year of the filing of the original ROD. If the review indicates no need for a supplement, that determination will be documented in a REC.
The Notice of Availability (NOA) is published by the Army to inform the public and others that a NEPA document is available for review. A NOA will be published in the FR, coordinating with EPA for draft and final EISs (including supplements), for RODs, and for EAs and FNSIs which are of national concern, are unprecedented, or normally require an EIS. EAs and FNSIs of local concern will be made available in accordance with § 651.36. This agency NOA should not be confused with the EPA's notice of availability of weekly receipts (NWR)
The Record of Decision (ROD) is a concise public document summarizing the findings in the EIS and the basis for the decision. A public ROD is required under the provisions of 40 CFR 1505.2 after completion of an EIS (see § 651.45(i)) for application). The ROD must identify mitigations which were important in supporting decisions and ensure that appropriate monitoring procedures are implemented (see § 651.15 for application).
Programmatic NEPA analyses, in the form of an EA or EIS, are useful to examine impacts of actions that are similar in nature or broad in scope. These documents allow the “tiering” of future NEPA documentation in cases where future decisions or unknown future conditions preclude complete NEPA analyses in one step. These documents are discussed further in § 651.14(c).
Categorical Exclusions (CX) are categories of actions with no individual or cumulative effect on the human or natural environment, and for which neither an EA nor an EIS is required. The use of a CX is intended to reduce paperwork and eliminate delays in the initiation and completion of proposed actions that have no significant impact.
(a) To use a CX, the proponent must satisfy the following three screening conditions:
(1) The action has not been segmented. Determine that the action has not been segmented to meet the definition of a CX. Segmentation can occur when an action is broken down into small parts in order to avoid the appearance of significance of the total action. An action can be too narrowly defined, minimizing potential impacts in an effort to avoid a higher level of NEPA documentation. The scope of an action must include the consideration of connected, cumulative, and similar actions (see § 651.51(a)).
(2) No exceptional circumstances exist. Determine if the action involves extraordinary circumstances that would preclude the use of a CX (see paragraphs (b)(1) through (14) of this section).
(3) One (or more) CX encompasses the proposed action. Identify a CX (or multiple CXs) that potentially encompasses the proposed action (Appendix B of this part). If no CX is appropriate, and the project is not exempted by statute or emergency provisions, an EA or an EIS must be
(b) Extraordinary circumstances that preclude the use of a CX are:
(1) Potential to adversely affect public health, safety, or the environment.
(2) Possible substantial, direct, indirect, or cumulative impacts.
(3) Imposition of uncertain or unique environmental risks.
(4) Greater scope or size than is normal for this category of action.
(5) Reportable releases of hazardous or toxic substances as specified in 40 CFR part 302, Designation, Reportable Quantities, and Notification.
(6) Discharge of petroleum, oils, and lubricants (POL) except from a properly functioning engine or vehicle, application of pesticides and herbicides, or where the proposed action results in the requirement to develop or amend a Spill Prevention, Control, or Countermeasures Plan.
(7) When a Record of Non-applicability (RONA) determination shows air emissions exceed de minimis levels leading to a formal Clean Air Act conformity determination.
(8) Potential to violate any federal, state, or local law or requirements imposed for the protection of the environment.
(9) Unresolved effect on environmentally sensitive resources, as defined in § 651.29(c).
(10) Involving effects on the quality of the environment that are likely to be highly controversial.
(11) Involving effects on the environment that are highly uncertain, involve unique or unknown risks, or are scientifically controversial.
(12) Establishes precedence (or makes decisions in principle) for future or subsequent actions that may have a future significant effect.
(13) Potential for degradation, while slight, of already existing poor environmental conditions. Also, initiation of a degrading influence, activity, or effect in areas not already significantly modified from their natural condition.
(14) Introduction/employment of unproven technology.
(c) If a proposed action may impact “environmentally sensitive” resources, a CX cannot be used. Environmentally sensitive resources include:
(1) Proposed federally listed, threatened, or endangered species or their designated critical habitats.
(2) Properties listed or eligible for listing on the National Register of Historic Places (AR 200-4).
(3) Areas having special designation or recognition such as prime or unique agricultural lands; coastal zones; designated wilderness or wilderness study areas; wild and scenic rivers; National Historic Landmarks (designated by the Secretary of the Interior); 100-year floodplains; wetlands; sole source aquifers (potential sources of drinking water); National Wildlife Refuges; National Parks; areas of critical environmental concern; or other areas of high environmental sensitivity.
(4) Cultural Resources as defined in AR 200-4.
(d) The use of a CX does not relieve the proponent from compliance with other statutes, such as RCRA, or consultations under the Endangered Species Act or the NHPA. Such consultations may be required to determine the applicability of the CX screening criteria.
(e) For those CXs that require a REC, a brief (one to two sentence) presentation of conclusions reached during screening is required in the REC. This determination can be made using current information and expertise, if available and adequate, or can be derived through conversation, as long as the basis for the determination is included in the REC. Copies of appropriate interagency correspondence can be attaced to the REC. Example conclusions regarding screening criteria are as follows:
(1) “USFWS concurred in informal coordination that E/T species will not be affected”
(2) “Corps of Engineers determined action is covered by nationwide permit”
(3) “SHPO concurred with action”
(4) “State Department of Natural Resources concurred that no effect to state sensitive species is expected.”
Types of actions that normally qualify for CX are listed in Appendix B of this part.
The Army list of CXs is subject to continual review and modification, in consultation with CEQ. Additional modifications can be implemented through submission, through channels, to ASA (I&E) for consideration and consultation. Subordinate Army headquarters may not modify the CX list through supplements to this regulation. Upon approval, proposed modifications to the list of CXs will be published in the
(a) An EA is intended to facilitate agency planning and informed decision-making, helping proponents and other decision makers understand the potential extent of environmental impacts of a proposed action and its alternatives, and whether those impacts (or cumulative impacts) are significant. The EA can aid in Army compliance with NEPA when no EIS is necessary. An EA will be prepared if a proposed action:
(1) Is not an emergency (§ 651.11(b))
(2) Is not exempt from (or an exception to) NEPA (§ 651.11(a))
(3) Does not qualify as a CX (§ 651.11(c))
(4) Is not adequately covered by existing NEPA analysis and documentation (§ 651.19)
(5) Does not normally require an EIS (§ 651.42).
(b) EAs as short as 20 pages may be adequate to meet the requirements of this regulation, depending upon site-specific circumstances and conditions. Any analysis that exceeds 25 pages in length should be evaluated to consider whether the action and its effects are complex enough to warrant an EIS.
The following Army actions normally require an EA, unless they qualify for the use of a CX:
(a) Special field training exercises or test activities in excess of five acres on Army land of a nature or magnitude not within the annual installation training cycle or installation master plan.
(b) Military construction that exceeds five contiguous acres, including contracts for off-post construction.
(c) Changes to established installation land use that generate impacts on the environment.
(d) Alteration projects affecting historically significant structures, archaeological sites, or places listed or eligible for listing on the National Register of Historic Places.
(e) Actions that could cause significant increase in soil erosion, or affect prime or unique farmland (off Army property), wetlands, floodplains, coastal zones, wilderness areas, aquifers or other water supplies, prime or unique wildlife habitat, or wild and scenic rivers.
(f) Actions proposed during the life cycle of a weapon system if the action produces a new hazardous or toxic material or results in a new hazardous or toxic waste, and the action is not adequately addressed by existing NEPA
(g) Development and approval of installation master plans.
(h) Development and implementation of Integrated Natural Resources Management Plans (INRMPs) (land, forest, fish, and wildlife) and Integrated Cultural Resources Management Plans (ICRMPs).
(i) Actions that take place in, or adversely affect, important wildlife habitats, including wildlife refuges.
(j) Field activities on land not controlled by the military, except those that do not alter land use to substantially change the environment (for example, patrolling activities in a forest). This includes firing of weapons, missiles, or lasers over navigable waters of the United States, or extending 45 meters or more above ground level into the national airspace. It also includes joint air attack training that may require participating aircraft to exceed 250 knots at altitudes below 3000 feet above ground level, and helicopters, at any speed, below 500 feet above ground level.
(k) An action with substantial adverse local or regional effects on energy or water availability. Such impacts can only be adequately identified with input from local agencies and/or citizens.
(l) Production of hazardous or toxic materials.
(m) Changes to established airspace use that generate impacts on the environment or socioeconomic systems, or create a hazard to non-participants.
(n) An installation pesticide, fungicide, herbicide, insecticide, and rodenticide-use program/plan.
(o) Acquisition, construction, or alteration of (or space for) a laboratory that will use hazardous chemicals, drugs, or biological or radioactive materials.
(p) An activity that affects a federally listed threatened or endangered plant or animal species, a federal candidate species, a species proposed for federal listing, or critical habitat.
(q) Substantial proposed changes in Army-wide doctrine or policy that potentially have an adverse effect on the environment (40 CFR 1508.18(b)(1)).
(r) An action that may threaten a violation of federal, state, or local law or requirements imposed for the protection of the environment.
(s) The construction and operation of major new fixed facilities or the substantial commitment of natural resources supporting new materiel.
EAs should be no longer than 25 pages in length, and will include:
(a) Signature (Review and Approval) page.
(b) Purpose and need for the action.
(c) Description of the proposed action.
(d)
(e)
(f)
(g)
(h)
(i)
(a) An EA results in either a FNSI or an NOI to prepare an EIS. Initiation of an NOI to prepare an EIS should occur at any time in the decision process when it is determined that significant effects may occur as a result of the proposed action. The proponent should notify the decision maker of any such determination as soon as possible.
(b) The FNSI is a document (40 CFR 1508.13) that briefly states why an action (not otherwise excluded) will not significantly affect the environment, and, therefore, an EIS will not be prepared. It summarizes the EA, noting any NEPA documents that are related to, but are not part of, the scope of the EA under consideration. If the EA is attached, the FNSI may incorporate the EA's discussion by reference. The draft FNSI will be made available to the public for review and comment for 30 days prior to the initiation of an action (see § 651.14(b)(2)(iii) for an exception). Following the comment period, the decision maker signs the FNSI, and the action can proceed. It is important that the final FNSI reflect the decision made, the response to public comments, and the basis for the final decision.
(c) The FNSI (Figure 3 in § 651.9) must contain the following:
(1) The name of the action.
(2) A brief description of the action (including any alternatives considered).
(3) A short discussion of the anticipated environmental effects.
(4) The facts and conclusions that have led to the FNSI.
(5) A deadline and POC for further information or receipt of public comments (see § 651.47).
(d) The FNSI is normally no more than two typewritten pages in length.
(e) The draft FNSI will be made available to the public prior to initiation of the proposed action, unless it is a classified action (see § 651.13 for security exclusions). Draft FNSIs that have national interest should be submitted with the proposed press release, along with a Questions and Answers (Q&A) package, through command channels to ASA(I&E) for approval and subsequent publication in the FR. Draft FNSIs having national interest will be coordinated with OCPA. Local publication of the FNSI will not precede the FR publication. The text of the publication should be identical to the FR publication.
(f) For actions of only regional or local interest, the draft FNSI will be publicized in accordance with § 651.14(b)(2). Distribution of the draft FNSI should include any agencies, organizations, and individuals that have expressed interest in the project, those who may be affected, and others deemed appropriate.
(g) Some FNSIs will require the implementation of mitigation measures to reduce potential impacts below significance levels, thereby eliminating the requirement for an EIS. In such instances, the following steps must be taken:
(1) The EA must be made readily available to the public for review through traditional publication and distribution, and through the World Wide Web (WWW) or similar technology. This distribution must be planned to ensure that all appropriate entities and stakeholders have easy access to the material. Ensuring this availability may necessitate the distribution of printed information at locations that are readily accessible and frequented by those who are affected or interested.
(2) Any identified mitigations must be tracked to ensure implementation, similar to those specified in an EIS and ROD.
(3) The EA analysis procedures must be sufficiently rigorous to identify and analyze impacts that are individually or cumulatively significant.
(h) The proponent is responsible for funding the preparation, staffing, and distribution of the draft FNSI and EA package, and the incorporation of public/agency review and comment. The proponent shall also ensure appropriate public and agency meetings, which may be required to facilitate the NEPA process in completing the EA. The decision maker, or his designee will approve and sign the EA and FNSI documents.
(i) The proponent should ensure that the decision maker is continuously informed of key findings during the EA process, particularly with respect to potential impacts and controversy related to the proposed action.
(a) The involvement of other agencies, organizations, and individuals in the development of EAs and EISs enhances collaborative issue identification and problem solving. Such involvement demonstrates that the Army is committed to open decision-making and builds the necessary community trust that sustains the Army in the long term. Public involvement is mandatory for EISs (see § 651.47 and Appendix D of this part for information on public involvement requirements).
(b) Environmental agencies and the public will be involved to the extent practicable in the preparation of an EA. If the proponent elects to involve the public in the development of an EA, § 651.47 and Appendix D of this part may be used as guidance. When considering the extent practicable of public interaction (40 CFR 1501.4(b)), factors to be weighed include:
(1) Magnitude of the proposed project/action.
(2) Extent of anticipated public interest, based on experience with similar proposals.
(3) Urgency of the proposal.
(4) National security classification.
(5) The presence of minority or economically-disadvantaged populations.
(c) Public involvement must begin early in the proposal development stage, and during preparation of an EA. The direct involvement of agencies with jurisdiction or special expertise is an integral part of impact analysis, and provides information and conclusions for incorporation into EAs. Unclassified documents incorporated by reference into the EA or FNSI are public documents.
(d) Copies of public notices, “scoping” letters, EAs, draft FNSIs, FNSIs, and other documents routinely sent to the public will be sent directly to appropriate congressional, state, and district offices.
(e) To ensure early incorporation of the public into the process, a plan to include all interested or affected parties should be developed at the beginning of the analysis and documentation process. Open communication with the public is encouraged as a matter of Army policy, and the degree of public involvement varies. Appropriate public notice of the availability of the completed EA/draft FNSI shall be made (see § 651.34) (see also AR 360-5 (Public Information)). The plan will include the following:
(1) Dissemination of information to local and installation communities.
(2) Invitation and incorporation of public comments on Army actions.
(3) Consultation with appropriate persons and agencies.
(f) Further guidance on public participation requirements (to potentially be used for EAs and EISs, depending on circumstances) is presented in Appendix D of this part.
Documents incorporated into the EA or FNSI by reference will be available for public review. Where possible, use of public libraries and a list of POCs for supportive documents is encouraged. A depository should be chosen which is open beyond normal business hours. To the extent possible, the WWW should also be used to increase public availability of documents.
EAs are dynamic documents. To ensure that the described setting, actions, and effects remain substantially accurate, the proponent or installation Environmental Officer is encouraged to periodically review existing documentation. If an action is not yet completed, substantial changes in the proposed action may require supplementation, as specified in § 651.5(g).
(a) If the proposed action may or will result in significant impacts to the environment, an EIS is prepared to provide more comprehensive analyses and conclusions about the impacts. Significant impacts of socioeconomic consequence alone do not merit an EIS.
(b) Significance of impacts is determined by examining both the context and intensity of the proposed action (40 CFR 1508.27). The analysis should establish, by resource category, the threshold at which significance is reached. For example, an action that would violate existing pollution standards; cause water, air, noise, soil, or underground pollution; impair visibility for substantial periods; or cause irreparable harm to animal or plant life could be determined significant. Significant beneficial effects also occur and must be addressed, if applicable.
(c) The proponent should use appropriate methods to identify and ascertain the “significance” of impacts. The use of simple analytical tools, which are subject to independent peer review, fully documented, and available
(a) An EIS is a public document designed to ensure that NEPA policies and goals are incorporated early into the programs and actions of federal agencies. An EIS is intended to provide a full, open, and balanced discussion of significant environmental impacts that may result from a proposed action and alternatives, allowing public review and comment on the proposal and providing a basis for informed decision-making.
(b) The NEPA process should support sound, informed, and timely (early) decision-making; not produce encyclopedic documents. CEQ guidance (40 CFR 1502.7) should be followed, establishing a page limit of 150 pages (300 pages for complex projects). To the extent practicable, EISs will “incorporate by reference” any material that is reasonably available for inspection by potentially interested persons within the time allowed for comment. The incorporated material shall be cited in the EIS and its content will be briefly described. Material based on proprietary data, that is itself not available for review and comment, shall not be incorporated by reference.
An EIS is required when a proponent, preparer, or approving authority determines that the proposed action has the potential to:
(a) Significantly affect environmental quality, or public health or safety.
(b) Significantly affect historic (listed or eligible for listing in the National Register of Historic Places, maintained by the National Park Service, Department of Interior), or cultural, archaeological, or scientific resources, public parks and recreation areas, wildlife refuge or wilderness areas, wild and scenic rivers, or aquifers.
(c) Significantly impact prime and unique farmlands located off-post, wetlands, floodplains, coastal zones, or ecologically important areas, or other areas of unique or critical environmental sensitivity.
(d) Result in significant or uncertain environmental effects, or unique or unknown environmental risks.
(e) Significantly affect a federally listed threatened or endangered plant or animal species, a federal candidate species, a species proposed for federal listing, or critical habitat.
(f) Either establish a precedent for future action or represent a decision in principle about a future consideration with significant environmental effects.
(g) Adversely interact with other actions with individually insignificant effects so that cumulatively significant environmental effects result.
(h) Involve the production, storage, transportation, use, treatment, and disposal of hazardous or toxic materials that may have significant environmental impact.
(i) Be highly controversial from an environmental standpoint.
(j) Cause loss or destruction of significant scientific, cultural, or historical resources.
The following actions normally require an EIS:
(a) Significant expansion of a military facility or installation.
(b) Construction of facilities that have a significant effect on wetlands, coastal zones, or other areas of critical environmental concern.
(c) The disposal of nuclear materials, munitions, explosives, industrial and military chemicals, and other hazardous or toxic substances that have the potential to cause significant environmental impact.
(d) Land acquisition, leasing, or other actions that may lead to significant changes in land use.
(e) Realignment or stationing of a brigade or larger table of organization equipment (TOE) unit during peacetime (except where the only significant impacts are socioeconomic, with no significant biophysical environmental impact).
(f) Training exercises conducted outside the boundaries of an existing military reservation where significant environmental damage might occur.
(g) Major changes in the mission or facilities either affecting environmentally sensitive resources (see § 651.29(c)) or causing significant environmental impact (see § 651.39).
The EIS should not exceed 150 pages in length (300 pages for very complex proposals), and must contain the following (detailed content is discussed in Appendix E of this part):
(a) Cover sheet.
(b) Summary.
(c) Table of contents.
(d) Purpose of and need for the action.
(e) Alternatives considered, including proposed action and no-action alternative.
(f) Affected environment (baseline conditions) that may be impacted.
(g) Environmental and socioeconomic consequences.
(h) List of preparers.
(i) Distribution list.
(j) Index.
(k) Appendices (as appropriate).
When the proposed action will have significant adverse effects on the human environment, and there is incomplete or unavailable information, the proponent will ensure that the EIS addresses the issue as follows:
(a) If the incomplete information relevant to reasonably foreseeable significant adverse impacts is essential to a reasoned choice among alternatives and the overall costs of obtaining it are not exorbitant, the Army will include the information in the EIS.
(b) If the information relevant to reasonably foreseeable significant adverse impacts cannot be obtained because the overall costs of obtaining it are exorbitant or the means to obtain it are not known (for example, the means for obtaining it are beyond the state of the art), the proponent will include in the EIS:
(1) A statement that such information is incomplete or unavailable.
(2) A statement of the relevance of the incomplete or unavailable information to evaluating the reasonably foreseeable significant adverse impacts on the human environment.
(3) A summary of existing credible scientific evidence that is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment.
(4) An evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community.
(a)
(1) Prior to preparing an EIS, an NOI will be published in the FR and in newspapers with appropriate or general circulation in the areas potentially affected by the proposed action. The OCLL will be notified by the ARSTAF proponent of pending EISs so that congressional coordination may be
(2) The NOI transmittal package includes the NOI, the press release, information for Members of Congress, memorandum for correspondents, and “questions and answers” (Q&A) package. The NOI shall clearly state the proposed action and alternatives, and state why the action may have unknown and/or significant environmental impacts.
(3) The proponent forwards the NOI and the transmittal package to the appropriate HQDA (ARSTAF) proponent for coordination and staffing prior to publication. The ARSTAF proponent will coordinate the NOI with HQDA (ODEP), OCLL, TJAG, OGC, OCPA, relevant MACOMs, and others). Only the Deputy Assistant Secretary of the Army for Environment, Safety, and Occupational Health (DASA(ESOH)) can authorize release of an NOI to the FR for publication, unless that authority has been delegated. A cover letter (similar to Figure 5 in § 651.46) will accompany the NOI. An example NOI is shown in Figure 6 in § 651.46.
(b)
(c)
(d)
(1)
(2)
(i) When the DEIS has been formally approved, the preparer can distribute the DEIS to the remainder of the distribution list. The DEIS must be distributed prior to, or simultaneous with, filing with EPA. The list includes federal, state, regional, and local agencies, private citizens, and local organizations. The EPA will publish the NOA in the FR. The 45-day comment period begins on the date of the EPA notice in the FR.
(ii) Following approval, the proponent will forward five copies of the DEIS to EPA for filing and notice in the FR; publication of EPA's NWR commences the public comment period. The proponent will distribute the DEIS prior to, or simultaneous with, filing with EPA. Distribution will include appropriate federal, state, regional, and local agencies; Native American tribes; and organizations and private citizens who have expressed interest in the proposed action.
(iii) For proposed actions that are environmentally controversial, or of national interest, the OCLL shall be notified of the pending action so that appropriate congressional coordination may be effected. The OCPA will coordinate public announcements through its chain of command.
(e)
(1) Any federal agency that has jurisdiction by law or special expertise with respect to any environmental impact involved and any appropriate federal, state, or local agency authorized to develop and enforce environmental standards.
(2) The applicant, if the proposed action involves any application of proposal for the use of Army resources.
(3) Any person, organization, or agency requesting the entire DEIS.
(4) Any Indian tribes, Native Alaskan organizations, or Native Hawaiian organizations potentially impacted by the proposed action.
(5) Chairs/co-chairs of any existing citizen advisory groups (for example, Restoration Advisory Boards).
(f)
(g)
(h)
(i)
(j)
(1) The proponent will prepare a ROD for the decision maker's signature, which will:
(i) Clearly state the decision by describing it in sufficient detail to address the significant issues and ensure necessary long-term monitoring and execution.
(ii) Identify all alternatives considered by the Army in reaching its decision, specifying the environmentally preferred alternative(s). The Army will discuss preferences among alternatives based on relevant factors including environmental, economic, and technical considerations and agency statutory missions.
(iii) Identify and discuss all such factors, including any essential considerations of national policy that were balanced by the Army in making its decision. Because economic and technical analyses are balanced with environmental analysis, the agency preferred alternative will not necessarily be the environmentally preferred alternative.
(iv) Discuss how those considerations entered into the final decision.
(v) State whether all practicable means to avoid or minimize environmental harm from the selected alternative have been adopted, and if not, why they were not.
(vi) Identify or incorporate by reference the mitigation measures that were incorporated into the decision.
(2) Implementation of the decision may begin immediately after approval of the ROD.
(3) The proponent will prepare an NOA to be published in the FR by the HQDA proponent, following congressional notification. Processing and approval of the NOA is the same as for an NOI.
(4) RODs will be distributed to agencies with authority or oversight over aspects of the proposal, cooperating agencies, appropriate congressional, state, and district offices, all parties that are directly affected, and others upon request.
(5) One electronic copy of the ROD will be forwarded to ODEP.
(6) A monitoring and enforcement program will be adopted and summarized for any mitigation (see Appendix C of this part).
(k)
(l)
(m)
(n)
(1) Include appropriate conditions in grants, permits, or other approvals.
(2) Ensure that the proponent's project budget includes provisions for mitigations.
(3) Upon request, inform cooperating or commenting agencies on the progress in carrying out adopted mitigation measures that they have proposed and that were adopted by the agency making the decision.
(4) Upon request, make the results of relevant monitoring available to the public and Congress.
(5) Make results of relevant monitoring available to citizens advisory groups, and others that expressed such interest during the EIS process.
A newly proposed action must be the subject of a separate EIS. The proponent may extract and revise the existing environmental documents in such a way as to bring them completely up to date, in light of the new proposals. Such a revised EIS will be prepared and processed entirely under the provisions of this part. If an EIS of another agency is adopted, it must be processed in accordance with 40 CFR 1506.3. Figures 4 through 8 are as follows:
(a) Public involvement is required for all EISs, and is strongly encouraged, as a matter of Army policy, for all Army actions, including EAs. The requirement (40 CFR 1506.6) for public involvement recognizes that all potentially interested or affected parties will be involved, when practicable, whenever analyzing environmental considerations. This requirement can be met at the very beginning of the process by developing a plan to include all affected parties and implementing the plan with appropriate adjustments as it proceeds (AR 360-5). The plan will include the following:
(1) Information dissemination to local and installation communities through such means as news releases to local media, announcements to local citizens groups, and Commander's letters at each phase or milestone (more frequently if needed) of the project. The dissemination of this information will be based on the needs and desires of the local communities.
(2) Each phase or milestone (more frequently if needed) of the project will be coordinated with representatives of local, state, tribal, and federal government agencies.
(3) Public comments will be invited and two-way communication channels will be kept open through various means as stated above. These two-way channels will be dynamic in nature, and should be updated regularly (at least monthly) to reflect the needs of the local community.
(4) Public affairs officers at all levels will be kept informed.
(b) When an EIS is being prepared, public involvement is a requisite element of the scoping process (40 CFR 1501.7(a)(1)).
(c) Proponents will invite public involvement in the review and comment of EAs and draft FNSIs (40 CFR 1506.6).
(d) Persons and agencies to be consulted include the following:
(1) Municipal, township, and county elected and appointed officials.
(2) Tribal, state, county, and local government officials and administrative personnel whose official duties include responsibility for activities or components of the affected environment related to the proposed Army action.
(3) Local and regional administrators of other federal agencies or commissions that may either control resources potentially affected by the proposed action (for example, the U.S. Fish and Wildlife Service); or who may be aware of other actions by different federal agencies whose effects must be considered with the proposed Army action (for example, the GSA).
(4) Members of existing citizen advisory groups, such as Restoration Advisory Boards and Citizen Advisory Commissions.
(5) Members of identifiable population segments within the potentially affected environments, whether or not they have clearly identifiable leaders or an established organization, such as farmers and ranchers, homeowners, small business owners, minority communities and disadvantaged communities, and tribal governments in accordance with Presidential Memorandum on Government-to-Government Relations With Native American Tribal Governments (April 29, 1994).
(6) Members and officials of those identifiable interest groups of local or national scope that may have interest in the environmental effects of the proposed action or activity (for example, hunters and fishermen, Izaak Walton League, Sierra Club, and the Audubon Society).
(7) Any person or group that has specifically requested involvement in the specific action or similar actions.
(e) The public involvement processes and procedures through which participation may be solicited include the following:
(1) Direct individual contact. Such interaction can identify persons and their opinions and initial positions, affecting the scope of issues that the EIS must address. Such limited contact may satisfy public involvement requirements when the expected significance and controversy of environmental effects is very limited.
(2) Small workshops or discussion groups.
(3) Larger public gatherings that are held after some formulation of the potential issues. The public is invited to express its views on the proposed courses of action. Public suggestions or alternative courses of action not already identified may be expressed at these gatherings that need not be formal public hearings.
(4) Identifying and applying other processes and procedures to accomplish the appropriate level of public involvement.
(f) The meetings described in paragraph (e) of this section should not be public hearings in the early stages of evaluating a proposed action. Public hearings do not substitute for the full range of public involvement procedures under the purposes and intent, as described in paragraph (e) of this section.
(g) Public surveys or polls may be performed to identify public opinion of a proposed action, as appropriate (AR 335-15).
(a) The scoping process (40 CFR 1501.7) is intended to aid in determining the scope of the analyses and significant issues related to the proposed action. The process requires appropriate public participation immediately following publication of the NOI in the FR. It is important to note that scoping is not synonymous with a public meeting. The Army policy is that EISs for legislative proposals significantly affecting the environment will go through scoping unless extenuating circumstances make it impractical. In some cases, the scoping process may be useful in the preparation of EAs and should be employed when it is useful.
(b) The scoping process identifies relevant issues related to a proposed action through the involvement of all potentially interested or affected parties (affected federal, state, and local agencies; recognized Indian tribes; interest groups, and other interested persons) in the environmental analysis and documentation. This process can:
(1) eliminate issues from detailed consideration which are not significant, or which have been covered by prior environmental review; and
(2) make the analysis and documentation more efficient by providing focus to the effort. Proper scoping identifies reasonable alternatives and the information needed for their evaluation, thereby increasing public confidence in the Army decision-making process.
(c) Scoping is a mechanism to reduce both costs and time required for an EA or EIS. This is done through the documentation of all potential impacts and the focus of detailed consideration on those aspects of the action which are potentially significant or controversial. To assist in this process the Army will use the Environmental Impact Computer System (EICS) starting in Fiscal Year (FY) 01, as appropriate. This system will serve to structure all three stages of the scoping process (§ 651.249, 651.50, and 651.51) and provide focus on those actions that are important and of interest to the public. While these discussions focus on EIS preparation and documents to support that process, the three phases also apply if scoping is used for an EA. If used in the preparation of an EA, scoping, and documents to support that process, can be modified and adopted to ensure
(d) When the planning for a project or action indicates the need for an EIS, the proponent initiates the scoping process to identify the range of actions, alternatives, and impacts for consideration in the EIS (40 CFR 1508.25). The extent of the scoping process (including public involvement) will depend upon:
(1) The size and type of the proposed action.
(2) Whether the proposed action is of regional or national interest.
(3) Degree of any associated environmental controversy.
(4) Importance of the affected environmental parameters.
(5) Significance of any effects on them.
(6) Extent of prior environmental review.
(7) Involvement of any substantive time limits.
(8) Requirements by other laws for environmental review.
(e) The proponent may incorporate scoping in the public involvement (or environmental review) process of other requirements, such as an EA. In such cases, the extent of incorporation is at the discretion of the proponent, working with the affected Army organization or installation. Such integration is encouraged.
(f) Scoping procedures fall into preliminary, public interaction, and final phases. These phases are discussed in § 651.47, § 651.40, and § 651.49 respectively.
In the preliminary phase, the proponent agency or office identifies, as early as possible, how it will accomplish scoping and with whose involvement. Key points will be identified or briefly summarized by the proponent, as appropriate, in the NOI, which will:
(a) Identify the significant issues to be analyzed in the EIS.
(b) Identify the office or person responsible for matters related to the scoping process. If they are not the same as the proponent of the action, that distinction will be made.
(c) Identify the lead and cooperating agency, if already determined (40 CFR 1501.5-6).
(d) Identify the method by which the agency will invite participation of affected parties, and identify a tentative list of the affected parties to be notified. A key part of this preliminary identification is to solicit input regarding other parties who would be interested in the proposed project or affected by it.
(e) Identify the proposed method for accomplishing the scoping procedure.
(f) Indicate the relationship between the timing of the preparation of environmental analyses and the tentative planning and decision-making schedule including:
(1) The scoping process itself.
(2) Collection or analysis of environmental data, including required studies.
(3) Preparation of draft and final EISs (DEISs and FEISs), and associated review periods.
(4) Filing of the ROD.
(5) Taking the action.
(6) For a programmatic EIS, preparation of a general expected schedule for future specific implementing (tiered) actions that will involve separate environmental analysis.
(g) If applicable, identify the extent to which the EIS preparation process is exempt from any of the normal procedural requirements of this part, including scoping.
(a) During this portion of the process, the proponent will invite comments from all affected parties and respondents to the NOI to assist in developing issues for detailed discussion in the EIS. Assistance in identifying possible participants is available from the ODEP.
(b) In addition to the affected parties identified paragraph (a) of this section, participants should include the following:
(1) Technical representatives of the proponent. Such persons must be able to describe the technical aspects of the proposed action and alternatives to other participants.
(2) One or more representatives of any Army-contracted consulting firm, if one has been retained to participate in writing the EIS or providing reports that the Army will use to create substantial portions of the EIS.
(3) Experts in various environmental disciplines, in any technical area where foreseen impacts are not already represented among the other scoping participants.
(c) In all cases, the participants will be provided with information developed during the preliminary phase and with as much of the following information that may be available:
(1) A brief description of the environment at the affected location. When descriptions for a specific location are not available, general descriptions of the probable environmental effects will be provided. This will also address the extent to which the environment has been modified or affected in the past.
(2) A description of the proposed alternatives. The description will be sufficiently detailed to enable evaluation of the range of impacts that may be caused by the proposed action and alternatives. The amount of detail that is sufficient will depend on the stage of the development of the proposal, its magnitude, and its similarity to other actions with which participants may be familiar.
(3) A tentative identification of “any public environmental assessments and other environmental impact statements that are being or will be prepared that are related to but are not part of the scope of the impact statement under consideration” (40 CFR 1501.7(a)(5)).
(4) Any additional scoping issues or limitations on the EIS, if not already described during the preliminary phase.
(d) The public involvement should begin with the NOI to publish an EIS. The NOI may indicate when and where a scoping meeting will take place and who to contact to receive preliminary information. The scoping meeting is an informal public meeting, and initiates a continuous scoping process, allowing the Army to scope the action and the impacts of alternatives. It is a working session where the gathering and evaluation of information relating to potential environmental impacts can be initiated.
(e) Starting with this information (paragraph (d) of this section), the person conducting the scoping process will use input from any of the involved or affected parties. This will aid in developing the conclusions. The proponent determines the final scope of the EIS. If the proponent chooses not to require detailed treatment of significant issues or factors in the EIS, in spite of relevant technical or scientific objections by any participant, the proponent will clearly identify (in the environmental consequences section of the EIS) the criteria that were used to eliminate such factors.
(a) The initial scope of the DEIS is determined by the proponent during and after the public interaction phase of the process. Detailed analysis should focus on significant issues (40 CFR 1501.7(a)(2)). To determine the appropriate scope, the proponent must consider three categories of actions, alternatives, and impacts.
(1) The three categories of actions (other than unconnected single actions) are as follows:
(i) Connected actions are those that are closely related and should be
(ii) Cumulative actions are those that, when viewed with other past and proposed actions, have cumulatively significant impacts and should be discussed in the same impact statement.
(iii) Similar actions are those that have similarities which provide a basis for evaluating their environmental consequences together, such as common timing or geography, and may be analyzed in the EIS. Agencies should do so when the best way to assess such actions is to treat them in a single EIS.
(2) The three categories of alternatives are as follows:
(i) No action.
(ii) Other reasonable courses of action.
(iii) Mitigation measures (not in the proposed action).
(3) The three categories of impacts are as follows:
(i) Direct.
(ii) Indirect.
(iii) Cumulative.
(4) The proponent can also identify any public EAs and EISs, prepared by the Army or another federal agency, related to, but not part of, the EIS under consideration (40 CFR 1501.7(a)(5)). Assignments for the preparation of the EIS among the lead and any cooperating agencies can be identified, with the lead agency retaining responsibility for the statement (40 CFR 1501.7(a)(4)); along with the identification of any other environmental review and consultation requirements so the lead and cooperating agencies may prepare other required analyses and studies concurrently with the EIS (40 CFR 1501.7(a)(6)).
(b) The identification and elimination of issues that are insignificant, non-controversial, or covered by prior environmental review can narrow the analysis to remaining issues and their significance through reference to their coverage elsewhere (40 CFR 1501.7(a)(3)).
(c) As part of the scoping process, the lead agency may:
(1) Set time limits, as provided in § 654.14(b), if they were not already indicated in the preliminary phase.
(2) Prescribe overall page limits for the EIS in accordance with the CEQ regulations that emphasize conciseness.
(d) All determinations reached by the proponent during the scoping process will be clearly conveyed to the preparers of the EIS in a Scope of Statement. The Scope of Statement will be made available to participants in the scoping process and to other interested parties upon request. Any scientific or technical conflicts that arise between the proponent and scoping participants, cooperating agencies, other federal agencies, or preparers will be identified during the scoping process and resolved or discussed by the proponent in the DEIS.
The proponent may use or develop graphic or other innovative methods to aid information gathering, presentation, and transfer during the three scoping phases. These include methods for presenting preliminary information to scoping participants, obtaining and consolidating input from participants, and organizing determinations on scope for use during preparation of the DEIS. The use of the World Wide Web (WWW) for these purposes is encouraged. Suggested uses include the implementation of a continuous scoping process, facilitating “virtual” public participation, as well as the dissemination of analyses and information as they evolve.
(a) If a lengthy period exists between a decision to prepare an EIS and the time of preparation, the proponent will initiate the NOI at a reasonable time in advance of preparation of the DEIS. The NOI will state any tentative conclusions regarding the scope of the EIS made prior to publication of the NOI. Reasonable time for public participation will be allowed before the proponent makes any final decisions or commitments on the EIS.
(b) The proponent of a proposed action may use scoping during preparation of environmental review documents other than an EIS, if desired. In such cases, the proponent may use these procedures or may develop modified procedures, as needed.
(a) Protection of the environment is an Army priority, no matter where the Army actions are undertaken. The Army is committed to pursuing an active role in addressing environmental quality issues in Army relations with neighboring communities and assuring that consideration of the environment is an integral part of all decisions. This section assigns responsibilities for review of environmental effects abroad of major Army actions, as required by Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, dated January 4, 1979, 3 CFR, 1979 Comp., p.356. This section applies to HQDA and Army agencies' actions that would significantly affect the quality of the human environment outside the United States.
(b) Executive Order 12114 and DODD 6050.7, Environmental Effects Abroad of Major Department of Defense Actions (planned currently to be replaced by a DODI, Analyzing Defense Actions With the Potential for Significant Impacts Outside the United States) provide guidance for analyzing the environmental impacts of Army actions abroad and in the global commons. Army components will, consistent with diplomatic factors (including applicable Status of Forces Agreements (SOFAs) and stationing agreements), national security considerations, and difficulties of obtaining information, document the review of potential environmental impacts of Army actions abroad and in the global commons as set forth in DODD 6050.7 (or DODI upon publication). The analysis and documentation of potential environmental impacts of Army actions abroad and in the global commons should, to the maximum extent possible, be incorporated into existing decision-making processes; planning for military exercises, training plans, and military operations.
The list of CXs in Appendix B of this part may be used in reviewing potential environmental impacts of major actions abroad and in the global commons, in accordance with DODD 6050.7 (or DODI upon publication) and Executive Order 12114, section 2-5(c).
(a) The ASA(I&E) will:
(1) Serve as the Secretary of the Army's responsible official for environmental matters abroad.
(2) Maintain liaison with the DUSD(ES) on matters concerning Executive Order 12114, DODD 6050.7, and this part.
(3) Coordinate actions with other Secretariat offices as appropriate.
(b) The DEP will:
(1) Serve as ARSTAF proponent for implementation of Executive Order 12114, DODD 6050.7, and this part.
(2) Apply this part when planning and executing overseas actions, where appropriate in light of applicable statutes and SOFAs.
(c) The DCSOPS will:
(1) Serve as the focal point on the ARSTAF for integrating environmental
(2) Consult with the Office of Foreign Military Rights Affairs of the Assistant Secretary of Defense (International Security Affairs) (ASD(ISA)) on significant or sensitive actions affecting relations with another nation.
(d) TJAG, in coordination with the OGC, will provide advice and assistance concerning the requirements of Executive Order 12114 and DODD 6050.7.
(e) The Chief of Public Affairs will provide advice and assistance on public affairs as necessary.
Military publications and forms are accessible from a variety of sources through the use of electronic media or paper products. In most cases, electronic publications and forms that are associated with military organizations can be accessed at various address or web sites on the Internet. Since electronic addresses can frequently change, or similar web links can also be modified at several locations on the Internet, it's advisable to access those sites using a search engine that is most accommodative, yet beneficial to the user. Additionally, in an effort to facilitate the public right to information, certain publications can also be purchased through the National Technical Information Service (NTIS). Persons interested in obtaining certain types of publications can write to the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.
CFRs may be found in your legal office or law library. Copies may be purchased from the Superintendent of Documents, Government Printing Office, Washington, D.C. 20401.
Before any CXs can be used, Screening Criteria, as referenced in § 651.29 must be met.
(a) For convenience only, the CXs are grouped under common types of activities (for example, administration/ operation, construction/demolition, and repair and maintenance). Certain CXs require a REC, which will be completed and signed by the proponent. Concurrence on the use of a CX is required from the appropriate environmental coordinator (EC), and that signature is required on the REC. The list of CXs is subject to continual review and modification. Requests for additions or changes to the CXs (along with justification) should be sent, through channels, to the ASA(I&E). Subordinate Army headquarters may not modify the CX list through supplements to this part. Proposed modifications to the list of CXs will be published in the FR by HQDA, to provide opportunity for public comment.
(b) Administration/operation activities:
(1) Routine law and order activities performed by military/military police and physical plant protection and security personnel. This also includes civilian natural resources and environmental law officers.
(2) Emergency or disaster assistance provided to federal, state, or local entities (REC required).
(3) Preparation of regulations, procedures, manuals, and other guidance documents that implement, without substantive change, the applicable HQDA or other federal agency regulations, procedures, manuals, and other guidance documents that have been environmentally evaluated (subject to previous NEPA review).
(4) Proposed activities and operations to be conducted in an existing non-historic structure which are within the scope and compatibility of the present functional use of the building, will not result in a substantial increase in waste discharged to the environment, will not result in substantially different waste discharges from current or previous activities, and emissions will remain within established permit limits, if any (REC required).
(5) Normal personnel, fiscal, and administrative activities involving military and civilian personnel (recruiting, processing, paying, and records keeping).
(6) Routinely conducted recreation and welfare activities not involving off-road recreational vehicles.
(7) Deployment of military units on a temporary duty (TDY) or training basis where existing facilities are used for their intended purposes consistent with the scope and size of existing mission.
(8) Preparation of administrative or personnel-related studies, reports, or investigations.
(9) Approval of asbestos or lead-based paint management plans drafted in accordance with applicable laws and regulations (REC required).
(10) Non-construction activities in support of other agencies/organizations involving community participation projects and law enforcement activities.
(11) Ceremonies, funerals, and concerts. This includes events such as state funerals, to include flyovers.
(12) Reductions and realignments of civilian and/or military personnel that: fall below the thresholds for reportable actions as prescribed by statute (10 U.S.C. 2687) and do not involve related activities such as construction, renovation, or demolition activities that would otherwise require an EA or an EIS to implement (REC required). This includes reorganizations and reassignments with no changes in force structure, unit redesignations, and routine administrative reorganizations and consolidations (REC required).
(13) Actions affecting Army property that fall under another federal agency's list of categorical exclusions when the other federal agency is the lead agency (decision maker), or joint actions on another federal agency's property that fall under that agency's list of categorical exclusions (REC required).
(14) Relocation of personnel into existing federally-owned or commercially-leased space, which does not involve a substantial change in the supporting infrastructure (for example, an increase in vehicular traffic beyond the capacity of the supporting road network to accommodate such an increase is an example of substantial change) (REC required).
(c) Construction and demolition:
(1) Construction of an addition to an existing structure or facility, and new construction on a previously developed site or on a previously undisturbed site if the area to be disturbed has no more than 5.0 cumulative acres of new surface disturbance. This does not include construction of facilities for the transportation, distribution, use, storage, treatment, and disposal of solid waste, medical waste, and hazardous waste (REC required).
(2) Demolition of non-historic buildings, structures, or other improvements and disposal of debris therefrom, or removal of a part thereof for disposal, in accordance with applicable regulations, including those regulations applying to removal of asbestos, polychlorinated biphenyls (PCBs), lead-based paint, and other special hazard items (REC required).
(3) Road or trail construction and repair on existing rights-of-ways or on previously disturbed areas.
(d) Cultural and natural resource management activities:
(1) Land regeneration activities using only native trees and vegetation, including site preparation. This does not include forestry operations (REC required).
(2) Routine maintenance of streams and ditches or other rainwater conveyance structures (in accordance with U.S. Army COE's permit authority under Section 404 of the Clean Water Act and applicable state and local permits), and erosion control and stormwater control structures (REC required).
(3) Implementation of hunting and fishing policies or regulations that are consistent with state and local regulations.
(4) Studies, data collection, monitoring and information gathering that do not involve major surface disturbance. Examples include topographic surveys, bird counts, wetland mapping, and other resources inventories (REC required).
(5) Maintenance of archaeological, historical, and endangered/threatened species avoidance markers, fencing, and signs.
(e) Procurement and contract activities:
(1) Routine procurement of goods and services (complying with applicable procedures for sustainable or “green” procurement) to support operations and infrastructure, including routine utility services and contracts.
(2) Acquisition, installation, and operation of utility and communication systems, mobile antennas, data processing cable and similar electronic equipment that use existing right-of-way, easement, distribution systems, and/or facilities (REC required).
(3) Conversion of commercial activities under the provisions of AR 5-20. This includes only those actions that do not change the actions or the missions of the organization or alter the existing land-use patterns.
(4) Modification, product improvement, or configuration engineering design change to materiel, structure, or item that does not change the original impact of the materiel, structure, or item on the environment (REC required).
(5) Procurement, testing, use, and/or conversion of a commercially available product (for example, forklift, generator, chain saw, etc.) which does not meet the definition of a weapon system (part 15, DODI 5000.2), and does not result in any unusual disposal requirements.
(6) Acquisition or contracting for spares and spare parts, consistent with the approved Technical Data Package (TDP).
(7) Modification and adaptation of commercially available items and products for military application (for example, sportsman's products and wear such as holsters, shotguns, sidearms, protective shields, etc.), as long as modifications do not alter the normal impact to the environment (REC required).
(8) Adaptation of non-lethal munitions and restraints from law enforcement suppliers and industry (such as rubber bullets, stun grenades, smoke bombs, etc.) for military police and crowd control activities where there is no change from the original product design and there are no unusual disposal requirements. The development and use by the military of non-lethal munitions and
(f) Real estate activities:
(1) Grants or acquisitions of leases, licenses, easements, and permits for use of real property or facilities in which there is no significant change in land or facility use. Examples include, but are not limited to, Army controlled property and Army leases of civilian property to include leases of training, administrative, general use, special purpose, or warehouse space (REC required).
(2) Disposal of excess easement areas to the underlying fee owner (REC required).
(3) Transfer of real property administrative control within the Army, to another military department, or to other federal agency, including the return of public domain lands to the Department of Interior, and reporting of property as excess and surplus to the GSA for disposal (REC required).
(4) Transfer of active installation utilities to a commercial or governmental utility provider, except for those systems on property that has been declared excess and proposed for disposal (REC required).
(5) Acquisition of real property (including facilities) where the land use will not change substantially or where the land acquired will not exceed 40 acres and the use will be similar to current or ongoing Army activities on adjacent land (REC required).
(6) Disposal of real property (including facilities) by the Army where the reasonably foreseeable use will not change significantly (REC required).
(7) Acquisition of land for restoration of off-post contamination, in accordance with CERCLA (REC required).
(g) Repair and maintenance activities:
(1) Routine repair and maintenance of buildings, airfields, grounds, equipment, and other facilities. Examples include, but are not limited to: removal and disposal of asbestos-containing material (for example, roof material and floor tile) or lead-based paint in accordance with applicable regulations; removal of dead, diseased, or damaged trees; and repair of roofs, doors, windows, or fixtures (REC required for removal and disposal of asbestos-containing material and lead-based paint or work on historic structures).
(2) Routine repairs and maintenance of roads, trails, and firebreaks. Examples include, but are not limited to: grading and clearing the roadside of brush with or without the use of herbicides; resurfacing a road to its original conditions; pruning vegetation, removal of dead, diseased, or damaged trees and cleaning culverts; and minor soil stabilization activities.
(3) Routine repair and maintenance of equipment and vehicles (for example, autos, tractors, lawn equipment, military vehicles, etc.) except depot maintenance of military equipment, which is substantially the same as that routinely performed by private sector owners and operators of similar equipment and vehicles.
(h) Hazardous materials/hazardous waste management and operations:
(1) Use of gauging devices, analytical instruments, and other devices containing sealed radiological sources; use of industrial radiography; use of radioactive material in medical and veterinary practices; possession of radioactive material incident to performing services such as installation, maintenance, leak tests, and calibration; use of uranium as shielding material in containers or devices; and radioactive tracers (REC required).
(2) Immediate responses in accordance with emergency response plans (for example, Spill Prevention Control and Countermeasure Plan (SPCCP)/Installation Spill Contingency Plan (ISCP), and Chemical Accident and Incident Response Plan) for release or discharge of oil or hazardous materials/substances; or emergency actions taken by Explosive Ordnance Demolition (EOD) detachment or Technical Escort Unit.
(3) Sampling, surveying, well drilling and installation, analytical testing, site preparation, and intrusive testing to determine if hazardous wastes, contaminants, pollutants, or special hazards (for example, asbestos, PCBs, lead-based paint, or unexploded ordnance) are present (REC required).
(4) Routine management, to include transportation, distribution, use, storage, treatment, and disposal of solid waste, medical waste, radiological and special hazards (for example, asbestos, PCBs, lead-based paint, or unexploded ordnance), and/or hazardous waste that complies with EPA, Army, or other regulatory agency requirements. This CX is not applicable to new construction of facilities for such management purposes.
(5) Research, testing, and operations conducted at existing enclosed facilities consistent with previously established safety levels and in compliance with applicable federal, state, and local standards. For facilities without existing NEPA analysis, including contractor-operated facilities, if the operation will substantially increase the extent of potential environmental impacts or is controversial, an EA (and possibly an EIS) is required.
(6) Reutilization, marketing, distribution, donation, and resale of items, equipment, or materiel; normal transfer of items to the Defense Logistics Agency. Items, equipment, or materiel that have been contaminated with hazardous materials or wastes will be adequately cleaned and will conform to the applicable regulatory agency's requirements.
(i) Training and testing:
(1) Simulated war games (classroom setting) and on-post tactical and logistical exercises involving units of battalion size or smaller, and where tracked vehicles will not be used (REC required to demonstrate coordination with installation range control and environmental office).
(2) Training entirely of an administrative or classroom nature.
(3) Intermittent on-post training activities that involve no live fire or vehicles off established roads or trails. Uses include, but are not limited to, land navigation, physical training, Federal Aviation Administration (FAA) approved aerial overflights, and small unit level training.
(4) Development/operational testing and demonstrations of new equipment at a government or commercial facility where the tests are conducted in conjunction with normal development or operational activities that have been previously assessed in an Army document pertaining to those operations.
(j) Aircraft and airfield activities:
(1) Infrequent, temporary (less than 30 days) increases in air operations up to 50 percent of the typical installation aircraft operation rate (REC required).
(2) Flying activities in compliance with Federal Aviation Administration Regulations and in accordance with normal flight patterns and elevations for that facility, where the flight patterns/elevations have been addressed in an installation master plan or other planning document that has been subject to NEPA public review.
(3) Installation, repair, or upgrade of airfield equipment (for example, runway visual range equipment, visual approach slope indicators).
(4) Army participation in established air shows sponsored or conducted by non-Army entities on other than Army property.
(a) The CEQ regulations recognize the following five means of mitigating an environmental impact. These five approaches to mitigation are presented in order of desirability.
(1) Avoiding the impact altogether by not taking a certain action or parts of an action. This method avoids environmental impact by eliminating certain activities in certain areas. As an example, the Army's Integrated Training Area Management (ITAM) program accounts for training requirements and activities while considering natural and cultural resource conditions on ranges and training land. This program allows informed management decisions associated with the use of these lands, and has mitigated potential impacts by limiting activities to areas that are compatible with Army training needs. Sensitive habitats and other resources are thus protected, while the mission requirements are still met.
(2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation. Limiting the degree or magnitude of the action can reduce the extent of an impact. For example, changing the firing time or the number of rounds fired on artillery ranges will reduce the noise impact on nearby residents. Using the previous ITAM example, the conditions of ranges can be monitored, and, when the conditions on the land warrant, the intensity or magnitude of the training on that parcel can be modified through a variety of decisions.
(3) Rectifying the impact by repairing, rehabilitating, or restoring the effect on the environment. This method restores the environment to its previous condition or better. Movement of troops and vehicles across vegetated areas often destroys vegetation. Either reseeding or replanting the areas with native plants after the exercise can mitigate this impact.
(4) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action. This method designs the action so as to reduce
(5) Compensating for the impact by replacing or providing substitute resources or environments (40 CFR 1508.20). This method replaces the resource or environment that will be impacted by the action. Replacement can occur in-kind or otherwise; for example, deer habitat in the project area can be replaced with deer habitat in another area; an in-kind replacement at a different location. This replacement can occur either on the impact site or at another location. This type of mitigation is often used in water resources projects.
(b) The identification and evaluation of mitigations involves the use of experts familiar with the predicted environmental impacts. Many potential sources of information are available for assistance. These include sources within the Army such as the USACHPPM, the USAEC, MACOM environmental office, the ODEP, COE research laboratories, Huntsville Division, military assistance offices in certain COE districts, and the Department of Defense (DoD) Regional Support Centers. State agencies are another potential source of information, and the appropriate POC within these agencies may be obtained from the installation environmental office. Local interest groups may also be able to help identify potential mitigation measures. Other suggested sources of assistance include:
(1) Aesthetics:
(i) Installation Landscape Architect.
(ii) COE District Landscape Architects.
(2) Air Quality:
(i) Installation Environmental Specialist.
(ii) Installation Preventive Medicine Officer.
(3) Airspace:
(i) Installation Air Traffic and Airspace Officers.
(ii) DA Regional Representative to the FAA.
(iii) DA Aeronautical Services.
(iv) Military Airspace Management System Office.
(v) Installation Range Control Officer.
(4) Earth Science:
(i) Installation Environmental Specialist.
(ii) COE District Geotechnical Staff.
(5) Ecology:
(i) Installation Environmental Specialist.
(ii) Installation Wildlife Officer.
(iii) Installation Forester.
(iv) Installation Natural Resource Committee.
(v) COE District Environmental Staff.
(6) Energy/Resource Conservation:
Installation Environmental Specialist.
(7) Health and Safety:
(i) Installation Preventive Medicine Officer.
(ii) Installation Safety Officer.
(iii) Installation Hospital.
(iv) Installation Mental Hygiene or Psychiatry Officer.
(v) Chaplain's Office.
(8) Historic/Archaeological Resources:
(i) Installation Environmental Specialist.
(ii) Installation Historian or Architect.
(iii) COE District Archaeologist.
(9) Land Use Impacts:
(i) Installation Master Planner.
(ii) COE District Community Planners.
(10) Socioeconomics:
(i) Personnel Office.
(ii) Public Information Officer.
(iii) COE District Economic Planning Staff.
(11) Water Quality:
(i) Installation Environmental Specialist.
(ii) Installation Preventive Medicine Officer.
(iii) COE District Environmental Staff.
(12) Noise:
(i) Preventive Medicine Officer.
(ii) Directorate of Public Works.
(iii) Installation Master Planner.
(13) Training Impacts:
Installation Director of Plans, Training, and Mobilization:
(c) Several different mitigation techniques have been used on military installations for a number of years. The following examples illustrate the variety of possible measures:
(1) There are maneuver restrictions in areas used extensively for tracked vehicle training. These restrictions are not designed to infringe on the military mission, but rather to reduce the amount of damage to the training area.
(2) Aerial seeding has been done on some installations to reduce erosion problems.
(3) Changing the time and/or frequency of operations has been used. This may involve changing the season of the year, the time of day, or even day of the week for various activities. These changes avoid noise impacts as well as aesthetic, transportation, and some ecological problems.
(4) Reducing the effects of construction has involved using techniques that keep heavy equipment away from protected trees and quickly re-seeding areas after construction.
(d) Monitoring and enforcement programs are applicable (40 CFR 1505.2(c)) and the specific adopted action is an important case (40 CFR 1505.3) if:
(1) There is a change in environmental conditions or project activities that were assumed in the EIS, such that original predictions of the extent of adverse environmental impacts may be too limited.
(2) The outcome of the mitigation measure is uncertain, such as in the case of the application of new technology.
(3) Major environmental controversy remains associated with the selected alternative.
(4) Failure of a mitigation measure, or other unforeseen circumstances, could result in serious harm to federal- or state-listed endangered or threatened species; important historic or archaeological sites that are either on, or meet eligibility requirements for nomination to the National Register of Historic Places; wilderness areas, wild and scenic rivers, or other public or private protected resources. Evaluation and determination of what constitutes serious harm must be made in coordination with the appropriate federal, state, or local agency responsible for each particular program.
(e) Five basic considerations affect the establishment of monitoring programs:
(1)
(2)
(3)
(4)
(5)
(f)
(1)
(2)
(3)
(g)
(1) Any technical parameters used must be measurable; for example, the monitoring program must be quantitative and statistically sound.
(2) A baseline study must be completed before the monitoring begins in order to identify the actual state of the system prior to any disturbance.
(3) The monitoring system must have a control, so that it can isolate the effects of the mitigation procedures from effects originating outside the action.
(4) The system's parameters and means of measuring them must be replicable.
(5) Parameter results must be available in a timely manner so that the decision maker can take any necessary corrective action before the effects are irreversible.
(6) Not every mitigation has to be monitored separately. The effectiveness of several mitigation actions can be determined by one measurable parameter. For example, the turbidity measurement from a stream can include the combined effectiveness of mitigation actions such as reseeding, maneuver restrictions, and erosion control devices. However, if a method combines several parameters and a critical change is noted, each mitigation measurement must be examined to determine the problem.
The objective of the plan will be to encourage the full and open discussion of issues related to Army actions. Some NEPA actions will be very limited in scope, and may not require full public participation and involvement. Other NEPA actions will obviously be of interest, not only to the local community, but to others across the country as well.
(a) To accomplish this objective, the plan will require:
(1) Dissemination of information to local and installation communities through such means as news releases to local media, announcements to local citizens groups, and Commander's letters. Such information may be subject to Freedom of Information Act and operations security review.
(2) The invitation of public comments through two-way communication channels that will be kept open through various means.
(3) The use of fully informed public affairs officers at all levels.
(4) Preparation of EAs which incorporate public involvement processes whenever appropriate (40 CFR 1506.6).
(5) Consultation of persons and agencies such as:
(i) Municipal, township, and county elected and appointed officials.
(ii) Tribal, state, county, and local government officials and administrative personnel whose official duties include responsibility for activities or components of the affected environment related to the proposed Army action.
(iii) Local and regional administrators of other federal agencies or commissions that may either control resources potentially affected by the proposed action (for example, the U.S. Fish and Wildlife Service) or who may be aware of other actions by different federal agencies whose effects must be considered with the proposed Army action (for example, the GSA).
(iv) Members of identifiable population segments within the potentially affected environments, whether or not they have clearly identifiable leaders or an established organization such as farmers and ranchers, homeowners, small business owners, and Native Americans.
(v) Members and officials of those identifiable interest groups of local or national scope that may have an interest in the environmental effects of the proposed action or activity (for example, hunters and fishermen, Isaak Walton League, Sierra Club, and the Audubon Society).
(vi) Any person or group that has specifically requested involvement in the specific action or similar actions.
(b) Public involvement should be solicited using the following processes and procedures:
(1) Direct individual contact. Such limited contact may suffice for all required public involvement, when the expected environmental effect is of very limited scope. This contract should identify:
(i) Persons expected to express an opinion and later participate.
(ii) Preliminary positions of such persons on the scope of issues that the analysis must address.
(2) Small workshops or discussion groups.
(3) Larger public gatherings that are held after some formulation of the potential issues, inviting the public to express views on the proposed courses of action. Public suggestions or additional alternative courses of action may be expressed at these gatherings which need not be formal public hearings.
(4) Any other processes and procedures to accomplish the appropriate level of public involvement.
(c)
(1) Information disseminated to local and installation communities through such means as news releases to local media, announcements to local citizens groups, and Commander's letters at each phase or milestone (more frequently if needed) of the project. Such information may be subject to Freedom of Information Act and operations security review.
(2) Each phase or milestone (more frequently if needed) of the project will be coordinated with representatives of local, state, and federal government agencies.
(3) Public comments will be invited and two-way communication channels will be kept open through various means as stated above.
(4) Public affairs officers at all levels will be kept informed.
(5) When an EIS is being prepared, public involvement is a requisite element of the scoping process (40 CFR 1501.7(a)(1)).
(6) Preparation of EAs will incorporate public involvement processes whenever appropriate (40 CFR 1506.6).
(7) Persons and agencies to be consulted include the following:
(i) Municipal, township, and county elected and appointed officials.
(ii) Tribal, state, county, and local government officials and administrative personnel whose official duties include responsibility for activities or components of the affected environment related to the proposed Army action.
(iii) Local and regional administrators of other federal agencies or commissions that may either control resources potentially affected by the proposed action (for example, the U.S. Fish and Wildlife Service); or who may be aware of other actions by different federal agencies whose effects must be considered with the proposed Army action, (for example, the GSA).
(iv) Members of identifiable population segments within the potentially affected environments, whether or not they have clearly identifiable leaders or an established organization such as farmers and ranchers, homeowners, small business owners, and Indian tribes.
(v) Members and officials of those identifiable interest groups of local or national scope that may have interest in the environmental effects of the proposed action or activity (for example, hunters and fishermen, Isaak Walton League, Sierra Club, and the Audubon Society).
(vi) Any person or group that has specifically requested involvement in the specific action or similar actions.
(8) The public involvement processes and procedures by which participation may be solicited include the following:
(i) The direct individual contact process identifies persons expected to express an
(ii) Small workshops or discussion groups.
(iii) Larger public gatherings that are held after some formulation of the potential issues. The public is invited to express its views on the proposed courses of action. Public suggestions or alternative courses of action not already identified may be expressed at these gatherings that need not be formal public hearings.
(iv) Identifying and applying other processes and procedures to accomplish the appropriate level of public involvement.
(9) The meetings described above should not be public hearings in the early stages of evaluating a proposed action. Public hearings do not substitute for the full range of public involvement procedures under the purposes and intent of paragraph (a) of this appendix.
(10) Public surveys or polls to identify public opinion of a proposed action will be performed (AR 335-15, chapter 10).
(d)
(1) In the NOI, identify the significant issues to be analyzed in the EIS.
(2) In the NOI, identify the office or person responsible for matters related to the scoping process. If they are not the same as the proponent of the action, make that distinction.
(3) Identify the lead and cooperating agency, if already determined (40 CFR 1501.5-6).
(4) Identify the method by which the agency will invite participation of affected parties; and identify a tentative list of the affected parties to be notified.
(5) Identify the proposed method for accomplishing the scoping procedure.
(6) Indicate the relationship between the timing of the preparation of environmental analyses and the tentative planning and decision-making schedule including:
(i) The scoping process itself.
(ii) Collecting or analyzing environmental data, including studies required of cooperating agencies.
(iii) Preparation of DEISs and FEISs.
(iv) Filing of the ROD.
(v) Taking the action.
(7) For a programmatic EIS, preparing a general expected schedule for future specific implementing actions that will involve separate environmental analysis.
(8) If applicable, in the NOI, identify the extent to which the EIS preparation process is exempt from any of the normal procedural requirements of this part, including scoping.
(a) EISs will:
(1) Be analytic rather than encyclopedic. Impacts will be discussed in proportion to their significance; and insignificant impacts will only be briefly discussed, sufficient to show why more analysis is not warranted.
(2) Be kept concise and no longer than absolutely necessary to comply with NEPA, CEQ regulations, and this regulation. Length should be determined by potential environmental issues, not project size. The EIS should be no longer than 200 pages.
(3) Describe the criteria for selecting alternatives, and discuss those alternatives, including the “no action” alternative, to be considered by the ultimate decision maker.
(4) Serve as a means to assess environmental impacts of proposed military actions, rather than justifying decisions.
(b) The EIS will consist of the following:
(1)
(i) The following statement: “The material contained in the attached (final or draft) EIS is for internal coordination use only and may not be released to non-Department of Defense agencies or individuals until coordination has been completed and the material has been cleared for public release by appropriate authority.” This sheet will be removed prior to filing the document with the EPA.
(ii) A list of responsible agencies including the lead agency and any cooperating agency.
(iii) The title of the proposed action that is the subject of the statement and, if appropriate, the titles of related cooperating agency actions, together with state and county (or other jurisdiction as applicable) where the action is located.
(iv) The name, address, and telephone number of the person at the agency who can supply further information, and, as appropriate, the name and title of the major approval authority in the command channel through HQDA staff proponent.
(v) A designation of the statement as a draft, final, or draft or final supplement.
(vi) A one-paragraph abstract of the statement that describes only the need for the proposed action, alternative actions, and the significant environmental consequences of the proposed action and alternatives.
(vii) The date by which comments must be received, computed in cooperation with the EPA.
(2)
(i) Summarizes the content of the document (from an oversight perspective).
(ii) Outlines mitigation requirements (to improve mitigation tracking and the programming of funds).
(iii) Identifies major and unresolved issues and potential controversies.
(iv) For EIS actions that have been delegated by the ASA(I&E), this document will also include status of requirements and conditions established by the delegation letter.
(3)
(4)
(5)
(i) A description of all reasonable alternatives, including the preferred action, alternatives beyond DA jurisdiction (40 CFR 1502.14(c)), and the no action alternative.
(ii) A comparative presentation of the environmental consequences of all reasonable alternative actions, including the preferred alternative.
(iii) A description of the mitigation measures and/or monitoring procedures (§ 651.15) nominated for incorporation into the proposed action and alternatives, as well as mitigation measures that are available but not incorporated and/or monitoring procedures (§ 651.15).
(iv) Listing of any alternatives that were eliminated from detailed study. A brief
(6)
(7)
(i) Direct effects and their significance.
(ii) Indirect effects and their significance.
(iii) Possible conflicts between the proposed action and existing land use plans, policies, and controls.
(iv) Environmental effects of the alternatives, including the proposed action and the no action alternative.
(v) Energy requirements and conservation potential of various alternatives and mitigation measures.
(vi) Irreversible and irretrievable commitments of resources associated with the proposed action.
(vii) Relationship between short-term use of the environment and maintenance and enhancement of long-term productivity.
(viii) Urban quality, historic, and cultural resources, and design of the built environment, including the reuse and conservation potential of various alternatives and mitigation measures.
(ix) Cumulative effects of the proposed action in light of other past, present, and foreseeable actions.
(x) Means to mitigate or monitor adverse environmental impacts.
(xi) Any probable adverse environmental effects that cannot be avoided.
(8)
(9)
(10)
(11)
A category of actions that do not require an EA or an EIS because Department of the Army (DA) has determined that the actions do not have an individual or cumulative impact on the environment.
This term, as used in this part, will include all documentation necessary to coordinate and staff analyses or present the results of the analyses to the public or decision maker.
A government, regardless of recognition by the United States, political factions, and organizations, that exercises governmental power outside the United States.
Any geographic area (land, water, and airspace) that is under the jurisdiction of one or more foreign governments. It also refers to any area under military occupation by the United States alone or jointly with any other foreign government. Includes any area that is the responsibility of an international organization of governments; also includes contiguous zones and fisheries zones of foreign nations.
Geographical areas outside the jurisdiction of any nation. They include the oceans outside territorial limits and Antarctica. They do not include contiguous zones and fisheries zones of foreign nations.
As the principal planner, implementer, and decision authority for a proposed action, the HQDA proponent is responsible for the substantive review of the environmental documentation and its thorough consideration in the decision-making process.
Reinforces, but does not have a meaning independent of, “significantly affecting the environment,” and will be interpreted in that context. A federal proposal with “significant effects” requires an EIS, whether it is “major” or not. Conversely, a “major federal action” without “significant effects” does not necessarily require an EIS.
Personnel from a variety of disciplines who write environmental documentation in clear and analytical prose. They are primarily responsible for the accuracy of the document.
Proponent identification depends on the nature and scope of a proposed action as follows:
(1) Any Army structure may be a proponent. For instance, the installation/activity Facility Engineer (FE)/Director of Public Works becomes the proponent of installation-wide Military Construction Army (MCA) and Operations and Maintenance (O&M) Activity; Commanding General, TRADOC becomes the proponent of a change in initial entry training. The proponent may or may not be the preparer.
(2) In general, the proponent is the lowest level decision maker. It is the unit, element, or organization that is responsible for initiating and/or carrying out the proposed action. The proponent has the responsibility to prepare and/or secure funding for preparation of the environmental documentation.
An action, program, or project that would violate existing pollution standards; cause water, air, noise, soil, or underground pollution; impair visibility for substantial periods of any day; cause interference with the reasonable peaceful enjoyment of property or use of property; create an interference with visual or auditory amenities; limit multiple use management programs for an area; cause danger to the health, safety, or welfare of human life; or cause irreparable harm to animal or plant life in an area. Significant beneficial effects also do occur and must be addressed if applicable. (See 40 CFR 1508.27.)
Department of Education.
Notice of proposed competitive preference for fiscal year 2001 and subsequent fiscal years.
The Assistant Secretary for the Office of Special Education and Rehabilitative Services proposes adding a competitive preference to certain grant competitions for fiscal year 2001 and subsequent fiscal years. This notice describes the proposed competitive preference, lists the programs to which it would apply, and requests comments on it.
We must receive your comments on or before October 10, 2000.
Address your comments about the proposed competitive preference to Ann Queen, U.S. Department of Education, 400 Maryland Avenue, SW., room 3317, Switzer Building, Washington, DC 20202-2550. If you prefer to send your comments through the Internet, use the following address: ann_queen@ed.gov.
Ann Queen. Telephone: (202) 205-8285. If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339. You may also request further information through the Internet at the following address: ann_queen@ed.gov.
Individuals with disabilities may obtain this document in an alternate format (
We invite you to submit comments regarding this proposed competitive preference. We also 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 competitive preference. Please let us know of any further opportunities that we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the programs.
During and after the comment period, you may inspect all public comments about this proposed competitive preference in room 3317, Switzer Building, 330 C Street SW., Washington, DC, between the hours of 9 a.m. and 4:30 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 the proposed competitive preference. If you want to schedule an appointment for this type of aid, you may call (202) 205-8207. If you use a TDD, you may call the Federal Information Relay Service at 1-800-877-8339.
This proposed competitive preference supports the National Education Goal that calls for every American to possess the skills necessary to compete in a global economy.
This notice does not solicit applications. In any year in which the Assistant Secretary chooses to use this competitive preference, we will invite applications through a notice in the
This notice contains proposed language for adding a competitive preference to competitions under 11 programs. Information on how we evaluate applications for each of these programs follows in parentheses:
Under 34 CFR 75.105(c)(2)(i) the Assistant Secretary proposes to add a competitive preference to applications that are otherwise eligible for funding under the 11 previously mentioned programs.
The maximum score under the selection criteria for each of these programs is 100 points; however, we will also use the following competitive preference so that up to an additional 10 points may be earned by an applicant for a total possible score of 110 points.
Up to 10 points may be earned based on the extent to which an application includes effective strategies for employing and advancing in employment qualified individuals with disabilities as project employees in projects awarded under these programs. In determining the effectiveness of those strategies, we will consider the applicant's prior success, as described in the application, in employing and advancing in employment qualified individuals with disabilities.
Therefore, within this competitive preference, applicants can be awarded up to a total of 10 points in addition to those awarded under the published selection criteria noted previously in parentheses after each program. That is, an applicant meeting this competitive preference could earn a maximum total of 110 points.
We will publish a notice of final competitive preference in the
These programs are subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for these programs.
You may view this document, as well as all other Department of Education documents published in the
To use the PDF you must have Adobe Acrobat Reader, which is available free at either of the preceding sites. 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. 709(c), 741, 764, 773, 774, 775, 795 and 796f-796f-5;