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U.S. Small Business Administration (SBA).
Interim final rule with request for comments.
In response to the President's major disaster declarations with respect to the World Trade Center and the Pentagon and the attendant economic repercussions from those disasters, the SBA is revising its disaster loan regulations. This Interim Final Rule allows SBA to make economic injury disaster loans to eligible small business concerns outside the declared disaster areas that suffered substantial economic injury as a direct result of the destruction of the World Trade Center, New York, New York, or the damage to the Pentagon on September 11, 2001, or as a direct result of any related Federal action taken between September 11, 2001 and October 22, 2001. Because these affected small business concerns need economic injury disaster assistance quickly, SBA is issuing this regulation as an interim final rule.
Address all comments concerning the interim rule to Herbert Mitchell, Associate Administrator for Disaster Assistance, U.S. Small Business Administration, 409 Third Street, SW., Washington, DC 20416.
James Rivera, Deputy Associate Administrator, Office of Disaster Assistance, 202-205-6734.
The President made major disaster declarations for the terrorist attacks on the World Trade Center, New York, New York and the Pentagon that took place on September 11, 2001. Notices, 66 FR 48682-48638, Sept. 21, 2001, amended 66 FR 49674, Sept. 28, 2001, and 66 FR 51435, Oct. 9, 2001, (NY) and 66 FR 51535, Oct. 9, 2001 (VA). Pursuant to SBA's current regulations, SBA has issued disaster declarations which provide economic injury disaster loans (EIDL) to eligible small business concerns in geographic areas contiguous to the declared disaster areas. Notices, 66 FR 48154, Sept. 18, 2001 (NY), amended 66 FR 50702-50703, Oct. 4, 2001 (NY), and 66 FR 49736, Sept. 28, 2001 (VA), corrected 66 FR 50703, Oct. 4, 2001; and Military Reservist Economic Injury Disaster Loan (EIDL) Notices, 66 FR 50241-50242, Oct. 2, 2001.
Under section 4(d) of the Small Business Act the SBA has a statutory obligation to act in the public interest when determining eligibility for assistance under the Small Business Act. 15 U.S.C. 633(d). In addition, the SBA is specifically authorized to provide economic injury disaster assistance to small businesses suffering substantial economic injury in areas affected by disasters. 15 U.S.C. 636(b)(2). Further, there is nothing in the Small Business Act that precludes SBA from expanding EIDL assistance to businesses located beyond the areas contiguous to the declared disaster areas. Accordingly, SBA is adding a new subpart G, with respect to the terrorist attacks on September 11, 2001, to authorize it to provide EIDL assistance to eligible small businesses located beyond such contiguous areas.
This action is being taken in recognition of the widespread economic dislocation caused by the terrorist attacks and the related Federal actions taken directly thereafter. Many small business concerns have suffered economic injury directly attributable to the terrorist attacks on September 11, 2001 or to certain necessary Federal actions taken in response to those attacks. These economic injuries have ranged from interruptions of normal business activities for brief periods of time to significant changes to normal business practices and procedures.
Under section 123.601 of the new subpart, SBA EIDL assistance will be available to such businesses if they can show that they suffered substantial economic injury as a direct result of the destruction of the World Trade Center, New York, New York, or the damage to the Pentagon on September 11, 2001, or any related Federal action occurring between September 11, 2001 and the date of publication of this interim final rule such that they are unable to meet their obligations as they mature or are unable to pay their ordinary and necessary operating expenses. The proceeds of an EIDL loan can be used by a business for working capital necessary to carry the business until resumption of normal operations and for expenditures necessary to alleviate the economic injury attributable to the terrorist attacks. EIDL assistance is not available for economic losses attributable to an economic downturn, and it may not exceed the amount attributable to the September 11, 2001 attacks or the specified Federal action. A loss of anticipated profits or a drop in sales is not considered substantial economic injury for this purpose.
Under section 123.601 of the new subpart, in order to obtain SBA EIDL assistance the business must show that it was a small business, as defined in part 121 of SBA's regulations (13 CFR part 121), on September 11, 2001. It must also demonstrate that the principal owners of the business have used all reasonably available funds, and that the business is unable to obtain credit elsewhere.
Under section 123.602 of the new subpart, not all small businesses are legally eligible for EIDL assistance. For example, SBA cannot provide EIDL assistance to a nonprofit or charitable entity or a business that derives more than one-third of its gross annual revenue from legal gambling activities. It is also unable to provide EIDL assistance to a business principally engaged in teaching, instructing, counseling, or indoctrinating religion or religious beliefs, whether in a religious or secular setting. Further, EIDL assistance cannot be used to refinance indebtedness that the business incurred prior to the terrorist attacks on September 11, 2001. Nor can such assistance be used to pay dividends or other disbursements to owners, partners, officers or stockholders, except
The window to apply for assistance under this subpart will expire ninety days from the date of publication of this rule. Therefore, all applications must be postmarked on or before that date. The SBA may extend this deadline in its discretion for good cause. Any request for an increase in EIDL assistance must be made not later than one year after the date SBA approves the initial loan request.
Eligible small business concerns may apply for assistance under this subpart using existing SBA Forms for the existing EIDL Program. The forms needed are SBA Form #5 “Disaster Business Loan Application (OMB #3245-0017), SBA Form #1368 “Additional Filing Requirements EIDL” (OMB #3245-0017), SBA Form #413 “Personal Financial Statement” (OMB #3245-0188), and IRS Form #8821 “Tax Information Authorization” (OMB #1545-1165). Applications can be filed at the SBA disaster office servicing the applicant's state. Such offices are located in Niagara Falls, NY; Atlanta, GA; Ft. Worth, TX; and Sacramento, CA. Small business concerns may obtain additional information by contacting the Disaster Area Office responsible for their state: Niagara Falls Disaster Office (Area 1), Telephone: (800) 659-2955; Facsimile: (716) 282-1472; (Connecticut, Delaware, Maryland, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Virginia, Vermont, West Virginia, District of Columbia, Commonwealth of Puerto Rico, Virgin Islands); Atlanta Disaster Office (Area 2), Telephone: (800) 359-2227; Facsimile: (404) 347-4183; (Alabama, Florida, Georgia, Illinois, Indiana, Kentucky, Michigan, Minnesota, Mississippi, North Carolina, Ohio, South Carolina, Tennessee, Wisconsin); Dallas/Ft. Worth Disaster Office (Area 3); Telephone: (800) 366-6303; Facsimile: (817) 885-7616; (Arkansas, Colorado, Iowa, Kansas, Louisiana, Missouri, Montana, North Dakota, Nebraska, New Mexico, South Dakota, Oklahoma, Texas, Utah, Wyoming); or Sacramento Disaster Office (Area 4); Telephone: (800) 488-5323; Facsimile: (916) 566-7280; (Alaska, Arizona, California, Hawaii, Idaho, Nevada, Oregon, Washington; The Islands of American Samoa, Marshall Islands, Micronesia, and Guam).
In general, SBA publishes a rule for public comment before issuing a final rule, in accordance with the Administrative Procedure Act and SBA regulations. 5 U.S.C. 553 and 13 CFR 101.108. The Administrative Procedure Act provides an exception to this standard rulemaking process, however, where an agency finds good cause to adopt a rule without prior public participation. 5 U.S.C. 553(b)(3)(B). The good cause requirement is satisfied when prior public participation is impracticable, unnecessary, or contrary to the public interest. Under such circumstances, an agency may publish an interim final rule without soliciting public comment.
In enacting the good cause exception to standard rulemaking procedures, Congress recognized that emergency situations arise where an agency must issue a rule without public participation. The President declared a national emergency as a result of the events of September 11, 2001. The events of that day have affected U.S. businesses both in the declared disaster areas and across the nation. Many of the affected businesses would qualify for SBA and other Federal assistance but for their location outside the contiguous counties.
Accordingly, SBA finds that good cause exists to publish this rule as an interim final rule in light of the urgent need to make economic injury disaster loans available to businesses that have suffered economic injury, but that do not qualify under SBA's existing geographic restrictions. Advance solicitation of comments for this rulemaking would be impracticable and contrary to the public interest, as it would delay the delivery of critical assistance to these businesses by a minimum of three to six months. Any such delay would be extremely prejudicial to the affected businesses. It is likely that some would be forced to cease operations before a rule could be promulgated under standard notice and comment rulemaking procedures.
Furthermore, SBA has a statutory obligation to act in the public interest in determining eligibility for Federal assistance under the Small Business Act. 15 U.S.C. 633(d). In addition, SBA also has the specific statutory authority to provide economic injury assistance to small businesses in areas affected by disasters. 15 U.S.C. 636(b)(2). SBA also notes the failure to adopt this rule immediately would work to the detriment of many small businesses.
Although this rule is being published as an interim final rule, comments are hereby solicited from interested members of the public. These comments must be received on or before November 21, 2001. SBA may then consider these comments in making any necessary revisions to these regulations.
The APA requires that “publication or service of a substantive rule shall be made not less than 30 days before its effective date, except * * * as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). SBA finds that good cause exists to make this final rule effective the same day it is published in the
The purpose of the APA provision is to provide interested and affected members of the public sufficient time to adjust their behavior before the rule takes effect. For the reasons set forth above in II, Justification of Publication of Interim Final Status Rule, SBA finds that good cause exists for making this interim final rule effective immediately, instead of observing the 30-day period between publication and effective date.
SBA also believes, based on its contacts with interested members of the public, that there is strong interest in immediate implementation of this rule. SBA is aware of many entities that will be assisted by the immediate adoption of this rule.
For purposes of Executive Order 12988, SBA has determined that this rule is drafted, to the extent practicable, in accordance with the standards set forth in section 3 of that Order.
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 responsibility among the various levels of government. Therefore, under Executive Order 13132, SBA determines that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
This rule does not impose any new information collection requirements from SBA which require the approval of OMB under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501-3520. The new rule increases access to SBA programs that assist small businesses, but uses existing SBA Forms with current OMB control numbers. Eligible small business concerns may apply for assistance under this subpart using existing SBA Forms for the existing EIDL Program. The forms needed are SBA Form #5 “Disaster Business Loan
Due to its publication as an interim final rule, SBA has determined that the provisions of the Regulatory Flexibility Act, 5 U.S.C. 601-612, do not apply.
The Office of Management and Budget (OMB) reviewed this rule as a “significant regulatory action” under section 3(f) under Executive Order 12866. SBA estimates that the final rule will have a significant economic impact of more than $100 million.
Under section 4(d) of the Small Business Act, the SBA has a statutory responsibility to act in the public interest in determining eligibility for Federal assistance under the Small Business Act. 15 U.S.C. 633(d). In addition, the SBA is specifically authorized to provide disaster assistance to small business concerns suffering substantial economic injury in areas affected by disasters. 15 U.S.C. 636(b)(2). SBA believes this regulation is necessary to reduce the adverse economic impact of the terrorist attacks and provide assistance to small business concerns affected.
The most significant benefit to small businesses as a result of this rule is their eligibility for economic injury disaster assistance programs. As stated above, SBA estimates that approximately $852 million will be loaned to small businesses as a result of this change. These small businesses will, as a result, be able to meet basic operational costs and payroll obligations. SBA believes that, while the subsidy cost of this lending will be approximately $250,000,000, the economic benefit of keeping these small businesses operating will be significant. The events of September 11, 2001 deepened the economic slowdown the country was experiencing, and in many instances it also raised unforeseen economic consequences for certain small businesses. In addition, many small businesses find themselves directly affected by certain necessary Federal regulatory action made necessary by the need for heightened security. As such, many small businesses that would have otherwise successfully weathered an ordinary economic downturn find themselves faced with extraordinary situations. The survival of these businesses presents a potential net increase to the economy. Furthermore, it will ameliorate the negative effects of the downturn and reduce or prevent additional costs to the government (through increased payments in entitlement programs, and reduced revenues) and the economy as a whole (through increased business failures and loss of capacity).
Disaster assistance, Loan programs-business, Reporting and recordkeeping requirements, Small businesses.
15 U.S.C. 634(b)(6), 636(b), 636(c) and 636(f); Pub. L. 102-395, 106 Stat. 1828, 1864; Pub. L. 103-75, 107 Stat. 739; and Pub. L. 106-50, 113 Stat. 245.
No. Notwithstanding § 123.4, SBA may make economic injury disaster loans outside the declared disaster areas and the contiguous geographic areas to small business concerns that have suffered substantial economic injury as a direct result of the destruction of the World Trade Center or the damage to the Pentagon on September 11, 2001, or as a direct result of any related federal action taken between September 11, 2001 and October 22, 2001.
(a) If your business has suffered substantial economic injury as a direct result of the destruction of the World Trade Center or the damage to the Pentagon on September 11, 2001, or as a direct result of any related federal action taken between September 11, 2001 and October 22, 2001, you are eligible to apply for an economic injury disaster loan under this subpart.
(1) Substantial economic injury is such that a business concern is unable to meet its obligations as they mature or to pay its ordinary and necessary operating expenses.
(2) Loss of anticipated profits or a drop in sales is not considered substantial economic injury for this purpose.
(b) Economic injury disaster loans are available under this subpart only if you were a small business (as defined in part 121 of this chapter) on September 11, 2001, you and your affiliates and principal owners (20% or more ownership interest) have used all reasonably available funds, and you are unable to obtain credit elsewhere (see § 123.104).
(c) Eligible businesses do not include agricultural enterprises, but do include small agricultural cooperatives and producer cooperatives.
Your business is not eligible for an economic injury disaster loan under this subpart if you (or any principal of the business) fit into any of the categories in §§ 123.101 and 123.201, or if your business is:
(a) Engaged in lending, multi-level sales distribution, speculation, or investment (except for real estate investment with property held for rental on September 11, 2001);
(b) A non-profit or charitable concern;
(c) A consumer or marketing cooperative;
(d) Not a small business concern; or
(e) Deriving more than one-third of gross annual revenue from legal gambling activities;
(f) A loan packager which earns more than one-third of its gross annual revenue from packaging SBA loans;
(g) Principally engaged in teaching, instructing, counseling, or indoctrinating religion or religious beliefs, whether in a religious or secular setting; or
(h) Primarily engaged in political or lobbying activities.
Your economic injury disaster loan under this subpart will have an interest rate of 4 percent per annum or less.
(a) You can only use the loan proceeds for working capital necessary to carry your concern until resumption of normal operations and for expenditures necessary to alleviate the specific economic injury, but not to exceed that which the business could have provided had the injury not occurred.
(b) Loan proceeds may not be used to:
(1) Refinance indebtedness which you incurred prior to September 11, 2001;
(2) Make payments on loans owned by another federal agency (including SBA) or a Small Business Investment Company licensed under the Small Business Investment Act;
(3) Pay, directly or indirectly, any obligations resulting from a federal, state or local tax penalty as a result of negligence or fraud, or any non-tax criminal fine, civil fine, or penalty for non-compliance with a law, regulation, or order of a federal, state, regional, or local agency or similar matter;
(4) Repair physical damage; or
(5) Pay dividends or other disbursements to owners, partners, officers, or stockholders, except for reasonable remuneration directly related to their performance of services for the business.
You have until January 22, 2002 to apply for a loan under this subpart. Your application must be postmarked no later than this date. SBA has the discretion, for good cause, to extend the application deadline by publication of a notice in the
Yes. Notwithstanding § 123.20, you may request an increase in the amount of an economic injury disaster loan under this subpart not later than one year after the date SBA approves your initial request.
Federal Aviation Administration, DOT.
Final rule.
This amendment supersedes an existing airworthiness directive (AD), applicable to certain General Electric Company (GE) GE90 series turbofan engines. That AD currently requires inspecting and purging the P3B and Ps3 lines and associated fittings and ports of moisture. This amendment will allow the installation of improved hardware as terminating action to requirements of the AD, and remove the GE90-92B engine model from the AD applicability. This amendment is prompted by the recent FAA approval of redesigned P3B and Ps3 sense lines, and the removal of the GE90-92B engine from the applicability. The actions specified in this AD are intended to prevent corruption of Ps3 signals, which could result in simultaneous loss of thrust control of both engines.
Effective date November 26, 2001. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of November 26, 2001.
The service information referenced in this AD may be obtained from General Electric Company via Lockheed Martin Technology Services, 10525 Chester Road, Suite C, Cincinnati, OH 45215; telephone: (513) 672-8400, fax: (513) 672-8422. This information may be examined at the Federal Aviation Administration (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.
John E. Golinski, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803-5299; telephone: (781) 238-7135; fax: (781) 238-7199.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 99-27-15, Amendment 39-11496 (65 FR 692, January 6, 2000), which is applicable to General Electric Company (GE) models GE90-76B, -77B, -85B, and -90B turbofan engines was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.
One comment from the manufacturer requests that the unsafe condition statement in the AD be revised to remove P3B signal blockage and partial blockage as some of the causes of loss of engine thrust control. Blockage and
Another comment from the manufacturer requests that three hardware items in the paragraph (k) Old Configuration Table be deleted to avoid confusion, because these items may be used in other locations on the engine. The FAA agrees. The hardware items which are a single tube clamp, double tube clamp, and bracket assembly, are deleted from the Old Configuration Table in this AD.
One commenter requests the deletion of the last phrase of the unsafe condition description, “which if it occurs in a critical phase of flight, could result in loss of airplane control.” The commenter did not provide a reason or justification for the request. The FAA partially agrees. As stated in the original AD, the FAA is especially concerned about the possibility of simultaneous loss of thrust control on both engines due to ice blockage of each engine's Ps3 pressure sensing system under certain atmospheric conditions. Corruption of Ps3 signals could result in simultaneous loss of thrust control of both engines. The unsafe condition description is rewritten for clarification as follows: “The actions specified in this AD are intended to prevent corruption of Ps3 signals, which could result in simultaneous loss of thrust control of both engines.”
After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes described previously. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.
There are about 208 engines of the affected design in the worldwide fleet. The FAA estimates that 28 engines installed on aircraft of U.S. registry would be affected by this AD, that it would take about one work hour per engine to do the inspection and purging, and that the average labor rate is $60 per work hour. Based on these figures, the total AD cost effect on U.S. operators for one inspection is estimated to be $1,680. The FAA also estimates that it would take about four work hours per engine to do the proposed P3B/Ps3 sense line replacement, and that the average labor rate is $60 per work hour. The manufacturer has stated that it may provide the redesigned hardware at no cost to operators. Based on this information, the total AD cost effect on U.S. operators for sense line replacement is estimated to be $6,720.
This final rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic effect, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
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 (m) 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 corruption of Ps3 signals, which could result in simultaneous loss of thrust control of both engines, do the following:
Determination of Further Action
(a) If the engine has been configured as specified in one of the following service bulletins (SB's), or has one of the following serial numbers (SN's), no further action is required.
(b) For engines that are not configured or listed by SN as specified in paragraph (a) of this AD, do the following:
(1) Inspect, clean, moisture purge, and if necessary, blend any high metal, nicks, or burrs on fitting threads, on one engine installed on Boeing 777 series aircraft, within 10 cycles-in-service (CIS) after the effective date of this AD in accordance with the Accomplishment Instructions, Section 3 of GE Alert Service Bulletin (ASB) No. GE90 73-A0060, Revision 3, dated September 14, 2000.
(2) Inspect, clean, moisture purge, and if necessary, blend any high metal, nicks, or burrs on fitting threads, on the other engine installed on the Boeing 777 series aircraft, within 20 CIS after the effective date of this AD in accordance with the Accomplishment Instructions, Section 3 of GE ASB No. GE90
(c) For engines that have complied with the initial and repetitive inspections of AD 99-27-15, GE ASB No. GE90 73-A0060, Revision 1, dated March 1, 2000; GE ASB No. GE90 73-A0060, Revision 2, dated May 12, 2000; GE ASB No. GE90 73-A0060, Revision 3, dated September 14, 2000; or with an FAA approved alternative method of compliance, perform repetitive inspections as specified in paragraph (d) of this AD.
(d) Thereafter, inspect, clean, and moisture purge, and if necessary, blend any high metal, nicks, or burrs on fitting threads of each engine in accordance with the Accomplishment Instructions, Section 3, of GE ASB No. GE90 73-A0060, Revision 3, dated September 14, 2000, within:
(1) 30 CIS since-last-inspection, OR,
(2) If applicable, 125 CIS since-last-inspection for one-engine-only per airplane.
(e) For replacement engines, perform the initial inspection, cleaning, and moisture purging, and if necessary, blend any high metal, nicks, or burrs on fitting threads as specified in paragraph (b) of this AD, except perform initial inspection before accumulating 30 CIS or 125 CIS, depending on the existing inspection interval for the engine that was replaced.
(f) After accomplishing the inspection and maintenance actions specified in paragraphs (b) through (e) of this AD, and before entry into service, do EITHER of the following:
(1) Perform an idle leak check to confirm no P3B or Ps3 sense system faults in accordance with Accomplishment Instructions, Section 3, paragraph (15), of GE ASB No. GE90 73-A0060, Revision 3, dated September 14, 2000. OR,
(2) Perform a dual signoff procedure check to confirm there are no loose fittings that could cause P3B and Ps3 sense system faults, in accordance with Accomplishment Instructions, Section 3, paragraph (15), of GE ASB No. GE90 73-A0060, Revision 3, dated September 14, 2000. Idle leak checks that were performed using GE ASB No. GE90 73-A0060, dated December 23, 1999, and idle leak checks or dual signoff procedure checks that were performed using GE ASB No. GE90 73-A0060, Revision 1, dated March 1, 2000, or GE ASB No. GE90 73-A0060, Revision 2, dated May 12, 2000, may be considered as alternative methods of compliance for this requirement.
(g) At the next engine shop visit after the effective date of this AD, but not later than December 31, 2001, install the redesigned P3B and Ps3 tubes, hoses, clamps, and bracket assembly in accordance with Accomplishment Instructions, Section 3.A. through 3.H. of GE ASB No. GE90 S/B 75-0031, Revision 3, dated March 30, 2001.
(h) For the purposes of this AD, an engine shop visit is defined as any time an engine has maintenance performed that involves separation of a major flange, such as removal of the low pressure turbine module, or high pressure compressor top case half.
(i) Hardware installation that was performed using GE ASB No. GE90 S/B 75-0031, Revision 2, dated September 14, 2000; or GE ASB No. GE90 S/B 75-0031, Revision 1, dated August 29, 2000, may be considered as alternative methods of compliance for this requirement.
(j) Do not perform the actions required by this AD concurrently on both engines installed on Boeing 777 series aircraft.
(k) After the effective date of this AD, do not install any of the old configuration hardware listed in the following table.
(l) Installation of redesigned hardware as specified in paragraph (g) of this AD constitutes terminating action for requirements of paragraph (d) and paragraph (e) of this AD.
(m) 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 must 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 airworthiness directive, if any, may be obtained from the ECO.
(n) 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 aircraft to a location where the requirements of this AD can be accomplished.
(o) The inspections and installation of redesigned hardware must be done in accordance with the following General Electric alert service bulletins (ASB's):
(p) This amendment becomes effective on November 26, 2001.
Federal Aviation Administration, DOT.
Final rule.
This amendment supersedes an existing airworthiness directive (AD), applicable to certain McDonnell Douglas Model MD-11 series airplanes, that currently requires a revision of the Airplane Flight Manual (AFM) to alert the flightcrew that both flight management computers (FMC) must be installed and operational. That AD also requires an inspection to determine the serial number of the FMC's; and follow-on corrective actions, if necessary, which terminate the AFM revision. This amendment requires an inspection to verify if a certain modification is on the front and rear identification plates of the FMC's; and applicable follow-on and corrective actions. This amendment is prompted by the FAA's determination that further rulemaking action is necessary to ensure that all affected airplanes are inspected for suspected defective multiplexers. The actions specified by this AD are intended to prevent loss of airspeed and altitude indications on both primary flight displays in the cockpit, and/or loss or degradation of the autopilot functionality, and consequent failure of the data busses.
Effective November 26, 2001.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of November 26, 2001.
The service information referenced in this AD may be obtained from Boeing Commercial Aircraft Group, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). This information may be examined at the Federal Aviation Administration (FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Brett Portwood, Aerospace Engineer, ANM-130L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5350; fax (562) 627-5210.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 98-15-14, amendment 39-10665 (63 FR 38464, July 17, 1998), which is applicable to certain McDonnell Douglas Model MD-11 series airplanes, was published in the
Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.
One operator indicates that it has no objections to the proposed actions, which it has already completed.
One operator states that “if the Mod AS accomplishes the corrective action of the data bus failure condition, and was satisfactorily demonstrated and approved by the FAA, then the terminating action should be to ‘verify that the FMCs installed have Mod AS incorporated and are software updated to the -912 P/N.’ There should be no need to confirm that a data bus failure condition does not exist.”
The same commenter states that it has already accomplished the proposed terminating action by modifying all of its FMCs with Mod “AS”, and has accomplished the Honeywell and the McDonnell Douglas/Boeing service bulletins to ensure that the software was updated to the -912 P/N. The FAA concurs that if the requirements of the applicable service bulletin have already been accomplished, this AD does not require that those actions be repeated. As a result, no change to the AD is necessary in this regard.
After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.
There are approximately 174 Model MD-11 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 59 airplanes of U.S. registry will be affected by this AD.
The actions that are currently required by AD 98-15-14 and retained in this AD take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $3,540, or $60 per airplane.
The new actions that are required by this AD will take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the new requirements of this AD on U.S. operators is estimated to be $3,540 or $60 per airplane.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the 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 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 (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 the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent loss of airspeed and altitude indications on both primary flight displays in the cockpit, and/or loss or degradation of the autopilot functionality, and consequent failure of the data busses, accomplish the following:
(a) Within 5 days after May 20, 1998 (the effective date of AD 98-10-01, amendment 39-10512), revise Section 1, page 5-1, of the Limitations Section of the FAA-approved AFM to include the following statement. This may be accomplished by inserting a copy of this AD into the AFM.
(b) Within 90 days after the effective date of this AD, do an inspection to verify that modification “AS” is on the front and rear identification plates of flight management computer 1 (FMC-1) and FMC-2, per McDonnell Douglas Service Bulletin MD11-34-085, Revision 01, dated September 20, 1999. After the inspection has been done, the AFM revision required by paragraph (a) of this AD may be removed from the AFM.
(c) If modification “AS” is found installed during the inspection required by paragraph (b) of this AD, before further flight, do the actions specified in paragraphs (c)(1) and (c)(2) of this AD, per McDonnell Douglas Service Bulletin MD11-34-085, Revision 01, dated September 20, 1999.
(1) Do a test of the FMC's in the flight compartment to ensure that modification “AS” is operational, and do applicable corrective actions, if necessary. Both FMC's must have modification “AS” installed and pass the test before loading new software per paragraph (c)(2) of this AD.
(2) Install new software and reidentify FMC-1 and FMC-2 as part number (P/N) 4059050-912.
McDonnell Douglas Service Bulletin MD11-34-085, Revision 01, dated September 20, 1999, references Honeywell Service Bulletin 4059050-34-6020, Revision 1, dated April 30, 1999, as an additional source of service information for the installation and reidentification requirements of paragraphs (c)(2) and (d)(2) of this AD.
(d) If modification “AS” is NOT found installed during the inspection required by paragraph (a) of this AD, before further flight, do the actions specified in paragraphs (d)(1), (d)(2), and (d)(3) of this AD, per McDonnell Douglas Service Bulletin MD11-34-085, Revision 01, dated September 20, 1999.
(1) Remove FMC-1 and FMC-2.
(2) Install modification “AS” and new software, and reidentify FMC-1 and FMC-2 as P/N 4059050-912.
(3) Install modified and reidentified FMC-1 and FMC-2.
(e) 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, Los Angeles Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Los Angeles ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Los Angeles ACO.
(f) 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.
(g) Except as required by paragraph (a) of this AD, the actions shall be done in accordance with McDonnell Douglas Service Bulletin MD11-34-085, Revision 01, dated September 20, 1999. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from Boeing Commercial Aircraft Group, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(h) This amendment becomes effective on November 26, 2001.
Federal Aviation Administration, DOT.
Final rule; request for comments.
This amendment adopts a new airworthiness directive (AD) that is applicable to certain Gulfstream Model G-V series airplanes. This action requires an initial inspection of the electrical connections for the fire extinguisher bottles; an inspection after any subsequent maintenance affecting the fire extinguisher bottles; corrective action, if necessary; and reporting of the results of the inspection to the Federal Aviation Administration (FAA). This action is prompted by a report indicating that the electrical connections for the fire extinguisher bottle squibs had been improperly installed either during manufacturing or during subsequent maintenance. This action is necessary to prevent fire extinguishing agent from being discharged into the wrong location, which could result in failure to extinguish an in-flight fire on an affected engine and jeopardize operation of the opposite engine. This action is intended to address the identified unsafe condition.
Effective November 6, 2001.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of November 6, 2001.
Comments for inclusion in the Rules Docket must be received on or before December 21, 2001.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-305-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address: 9-anm-iarcomment@faa.gov. Comments sent via fax or the Internet must contain “Docket No. 2001-NM-305-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 ASCII text.
The service information referenced in this AD may be obtained from Gulfstream Aerospace Corporation, P.O. Box 2206, M/S D-10, Savannah, Georgia 31402-9980. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, suite 450, Atlanta, Georgia; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Robert Chupka, Aerospace Engineer, Systems and Flight Test Branch, ACE-116A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, suite 450, Atlanta, Georgia 30349; telephone (770) 703-6046; fax (770) 703-6097.
The FAA has received a report that, during an inspection of a Gulfstream Model G-V series airplane, the electrical connections for the left and right fire extinguisher bottle squibs were found to be improperly installed. The improper installation occurred either during manufacturing or during subsequent maintenance affecting the fire extinguisher bottles. This condition, if not corrected, could cause fire extinguishing agent to be discharged into the wrong location, which could result in failure to extinguish an in-flight fire on an affected engine and jeopardize operation of the opposite engine.
The FAA has reviewed and approved Gulfstream V Alert Customer Bulletin No. 14, dated September 20, 2001, which describes procedures for a one-time inspection of the electrical connections for the engine fire extinguisher bottles and for correction of any incorrect electrical connection which is detected.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design, this AD is being issued to prevent fire extinguishing agent from being discharged into the wrong location, which could result in failure to extinguish an in-flight fire on an affected engine and jeopardize operation of the opposite engine. This AD requires accomplishment of the actions specified in the service bulletin described previously, except as discussed below. This AD also requires that operators report results of inspection findings to the FAA.
Because it is not known whether the improper installation of the electrical connections for the fire extinguisher bottles occurred during the manufacturing process or during subsequent maintenance, this AD requires inspection of those electrical connections following any maintenance affecting the fire extinguisher bottles. The alert customer bulletin does not refer to inspection following maintenance. This AD also requires that inspection findings be reported to the FAA, whereas the alert customer bulletin recommends notice to Gulfstream that the Accomplishment Instructions of the alert customer bulletin have been performed.
This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking.
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 shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption
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 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 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 rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-305-AD.” The postcard will be date stamped and returned to the commenter.
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it 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 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 (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 the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent fire extinguishing agent from being discharged into the wrong location, which could result in failure to extinguish an in-flight fire on an affected engine and jeopardize operation of the opposite engine, accomplish the following:
(a) Within the next 25 flight hours, but no later than 10 days after the effective date of this AD: Perform a general visual inspection of the electrical connections of the fire extinguisher bottles for correct connections, in accordance with Gulfstream Alert Customer Bulletin No. 14, dated September 20, 2001.
(b) Prior to further flight following any maintenance that affects the fire extinguisher bottles: Perform the inspection required by paragraph (a) of this AD.
For the purposes of this AD, a general visual inspection is defined as: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or drop-light, and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(c) If any incorrect electrical connection is detected during the inspections required by paragraph (a) or (b) of this AD: Correct that connection, in accordance with the Accomplishment Instructions of Gulfstream Alert Customer Bulletin No. 14, dated September 20, 2001.
(d) Submit a report of inspection findings (both positive and negative) to the Manager, Atlanta Aircraft Certification Office (ACO), FAA, One Crown Center, 1895 Phoenix Boulevard, suite 450, Atlanta, Georgia 30349; fax (770) 703-6097; at the applicable time specified in paragraph (d)(1) or (d)(2) of this AD. The report must include the inspection results, a description of any discrepancies found, the airplane serial number, and the number of landings and flight hours on the airplane. Information collection requirements contained in this regulation have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
(1) For airplanes on which the inspection required by paragraph (a) of this AD is accomplished after the effective date of this AD: Submit the report within 35 days after performing the inspection required by paragraph (a) of this AD.
(2) For airplanes on which the inspection required by paragraph (a) of this AD has been accomplished prior to the effective date of this AD: Submit the report within 35 days after the effective date of this AD.
(e) 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, Atlanta ACO. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Atlanta ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Atlanta ACO.
(f) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR
(g) The actions shall be done in accordance with Gulfstream V Alert Customer Bulletin No. 14, dated September 20, 2001. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from Gulfstream Aerospace Corporation, P.O. Box 2206, M/S D-10, Savannah, Georgia 31402-9980. Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, suite 450, Atlanta, Georgia; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(h) This amendment becomes effective on November 6, 2001.
Department of Veterans Affairs.
Final rule.
This document adopts as a final rule proposed amendments to the Appeals Regulations and Rules of Practice of the Board of Veterans' Appeals (Board). These amendments clarify that the Board may address questions related to its jurisdiction in the first instance. They also provide for notice and an opportunity to comment when the Board raises jurisdictional questions on its own initiative.
Steven L. Keller, Senior Deputy Vice Chairman, Board of Veterans' Appeals, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 565-5978.
Initial decisions on claims for veterans' benefits are made at VA field offices throughout the nation. Claimants may appeal those decisions to the Board. This final rule amends Department of Veterans Affairs' regulations pertaining to such appeals.
These amendments were previously published in the
This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).
The Unfunded Mandates Reform Act requires (in section 202) that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.
The Secretary hereby certifies that this final rule does not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule would affect only the processing of claims by VA and would not affect small businesses.
Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.
There is no Catalog of Federal Domestic Assistance number for this final rule.
Administrative practice and procedure, Claims, Veterans.
Administrative practice and procedure, Claims, Lawyers, Legal services, Veterans.
38 U.S.C. 501(a), unless otherwise noted.
Following receipt of a timely Substantive Appeal, the agency of original jurisdiction will certify the case to the Board of Veterans' Appeals. * * *
38 U.S.C. 501(a) and as noted in specific sections.
(c)
(d)
(e)
38 U.S.C. 511(a), 7104, 7105, 7108
Environmental Protection Agency (EPA).
Final rule.
EPA is finalizing a limited approval and limited disapproval of revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). This action was proposed in the
This rule is effective on November 21, 2001.
You can inspect copies of the administrative record for this action at EPA's Region IX office during normal business hours. You may also see copies of the submitted SIP revisions at the following locations:
Jerald S. Wamsley, Rulemaking Office (AIR-4), U.S. Environmental Protection Agency, Region IX, (415) 744-1226.
Throughout this document, “we,” “us” and “our” refer to EPA.
On July 6, 2001 (66 FR 35573), EPA proposed a limited approval and limited disapproval of SJVUAPCD Rule 4603 submitted by California for incorporation into the California SIP.
We proposed a limited approval because we determined that Rule 4603 improves the SIP and is largely consistent with the relevant CAA requirements. Simultaneously, we proposed a limited disapproval because some rule provisions conflict with section 110 and part D of the Act.
These provisions of Rule 4603 conflict with section 110 and part D of the Act and prevent full approval of the SIP revision.
1. The language in section 4.1 allows at least two competing interpretations of the rule. This section should be revised to allow only one interpretation consistent with EPA guidance and policy concerning rule applicability, size cut-offs, and allowable non-compliant coating use. District practice of exempting fifteen pounds per day of non-compliant VOC emissions from all sources contradicts the intent of the size cutoff requirements of EPA's RACT Guidance. Furthermore, this practice is inconsistent with EPA policy providing for no more than 55 gallons of non-compliant coating use per rolling 12 month period.
2. Rule 4603 sets a viscosity limit for dip coating of structural steel components. However, SJVUAPCD did not provide a test method for determining compliance with this viscosity limit.
3. Rule 4603 incorporates a solid film lubricant specialty category emissions limit of 880 grams per liter (gr/l.) This limit exceeds the statutory and Control Technique Guideline (CTG) limit of 420 gr/l.
EPA's proposed action provided a 30-day public comment period. During this period, we received no comments on our proposed limited approval and disapproval of Rule 4603.
No comments were submitted that may have provoked reconsideration of our assessment of the rule as described in our July 6, 2001 proposed action. Therefore, EPA is finalizing a limited approval of the submitted rule as authorized in sections 110(k)(3) and 301(a) of the Act. This action incorporates the submitted rule into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of Rule 4603. As a result, sanctions will be imposed unless EPA approves subsequent SIP revisions that correct the rule's deficiencies within 18 months of the effective date of this action. These sanctions will be imposed under section 179 of the Act according to 40 CFR 52.31. In addition, EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct the rule's deficiencies within 24 months. The San Joaquin Valley Unified Air Pollution Control District has adopted the submitted rule and EPA's final limited disapproval does not prevent the SJVUAPCD from enforcing it.
The Office of Management and Budget has exempted this regulatory action
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.
Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.
Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612, Federalism and 12875, Enhancing the Intergovernmental Partnership. Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely acts on a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
This final rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply act on requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.
EPA's disapproval of the state request under section 110 and subchapter I, part D of the Clean Air Act does not affect any existing requirements applicable to small entities. Any pre-existing federal requirements remain in place after this disapproval. Federal disapproval of the state submittal does not affect state enforceability. Moreover, EPA's disapproval of the submittal does not impose any new Federal requirements. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds.
Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action acts on pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no
Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.
EPA believes that VCS are inapplicable to today's action because it does not require the public to perform activities conducive to the use of VCS.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 21, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
(285) * * *
(i) * * *
(B) San Joaquin Valley Unified Air Pollution Control District.
(
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of the
This regulation is effective October 22, 2001. Objections and requests for hearings, identified by docket control number OPP-301056, must be received by EPA, on or before December 21, 2001.
Written objections and hearing requests may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit IX. of the
By mail: Anne Ball, c/o Product Manager (PM) 90, Biopesticides and Pollution Prevention Division (7511C), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703) 308-8717; and e-mail address: Ball.Anne@epa.gov.
You may be affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected categories and entities may include, but are not limited to:
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in the table could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
In the
The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of
New section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” Additionally, section 408(b)(2)(D) requires that the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.
Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Acute toxicity studies indicate that AtEze, the end-use product containing
Tier II and III data as listed in 40 CFR 158.740(c) were not triggered because of
In examining aggregate exposure, FFDCA section 408 directs EPA to consider available information
1.
2.
For the U.S. population, including infants and children, aggregate exposure to
EPA is required under FFDCA, as amended by FQPA, to develop a screening program to determine whether certain substances (including all pesticide active and other ingredients) “may have an effect in humans that is similar to an effect produced by a naturally-occurring estrogen, or other such endocrine effects as the Administrator may designate.” Following the recommendations of its Endocrine Disruptor Screening and Testing Advisory Committee (EDSTAC), EPA determined that there was a scientific basis for including, as part of the program, the androgen-and thyroid hormone systems, in addition to the estrogen hormone system. EPA also adopted EDSTAC'S recommendation that the Program include evaluations of potential effects in wildlife. For pesticide chemicals EPA will use FIFRA and, to the extent that effects in wildlife may help determine whether a substance may have an effect in humans, FFDCA authority to require the wildlife evaluations. As the science develops and resources allow, screening of additional hormone systems may be added to the Endocrine Disruptor Screening Program (EDSP).
When the appropriate screening and or testing protocols being considered under the Agency's Endocrine Disruptor Screening Program have been developed,
The Agency proposes to establish an exemption from the requirement of a tolerance without any numerical limitation. Accordingly the Agency has concluded that analytical methods are not needed for enforcement purposes for residues of
There are no Codex Maximum Residue Levels nor any tolerances or exemptions issued for
Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made.
You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301056 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before December 21, 2001.
1.
Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.
2.
EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov, or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
3.
A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).
This final rule establishes an exemption from the tolerance requirement under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346(a) and 371.
An exemption from the requirement of a tolerance is established for residues of the microbial pesticide
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Quota transfers; General category daily retention limit adjustment.
NMFS adjusts the October-December subquota for the General category Atlantic bluefin tuna (BFT) fishery by transferring 50 metric tons (mt) from the Longline South subcategory quota, 10 mt from the Longline North subquota, and 100 mt from the Angling category (50 mt from the school size class and 50 mt from the large school/small medium size class for the northern area), for a revised coastwide General category subquota of approximately 347.7 mt for October-December, including the addition of underharvest from previous time periods. NMFS also adjusts the Angling South large school/small medium subcategory by transferring 75 mt from the Angling North large school/small medium subcategory. Finally, NMFS adjusts the BFT General category daily retention limit to one fish per vessel. These actions are being taken to allow for maximum utilization of the U.S. landings quota of BFT while maintaining a fair distribution of fishing opportunities, preventing overharvest of the adjusted subquotas for the affected fishing categories, helping to achieve optimum yield in the General category fishery, and allowing the collection of a broad range of data for stock monitoring purposes, consistent with the objectives of the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP).
The quota transfers are effective October 16, 2001, through May 31, 2002. The General category retention limit adjustment is effective October 19, 2001, through December 31, 2001.
Brad McHale or Pat Scida, 978-281-9260.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971
Under the implementing regulations at 50 CFR 635.27(a)(8), NMFS has the authority to transfer quotas among categories, or, as appropriate, subcategories, of the fishery, after considering the following factors: (1) The usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock; (2) the catches of the particular category quota to date and the likelihood of closure of that segment of the fishery if no allocation is made; (3) the projected ability of the
If it is determined, based on the factors listed here and the probability of exceeding the total quota, that vessels fishing under any category or subcategory quota are not likely to take that quota, NMFS may transfer inseason any portion of the remaining quota of that fishing category to any other fishing category or to the Reserve quota.
Annual BFT quota specifications issued under § 635.27 provide for a quota of 666.7 mt of large medium and giant BFT to be harvested from the regulatory area by vessels fishing under the General category quota during the 2001 fishing year. The General category BFT quota is further subdivided into time period subquotas to provide for broad temporal and geographic distribution of scientific data collection and fishing opportunities. The October-December subquota was initially set at 65.7 mt for the 2001 fishing year, and is currently 187.7 mt, after the addition of approximately 122 mt of unharvested subquota from previous periods. As of October 12, 2001, General category landings against this adjusted October-December subquota have totaled approximately 161.6 mt, reducing the available quota for the remainder of the season to 26.1 mt. An additional 10 mt has been set aside for the traditional fall New York Bight fishery.
After considering the factors for making transfers between categories, NMFS has determined that 50 mt of the remaining Longline South subcategory quota of approximately 166.6 mt, and 10 mt of the remaining Longline North subcategory quota of approximately 21 mt should be transferred to the General category. While substantial quota remains in the Longline category, NMFS is in the process of developing proposed regulations to adjust the target catch requirements for pelagic longline vessels retaining bluefin tuna, and is therefore not transferring additional quota from the Longline category. NMFS has also determined that 50 mt of the remaining Angling North school subcategory quota of approximately 124.7 mt, and 50 mt of the remaining Angling North large school/small medium subcategory quota of approximately 165.4 mt should be transferred to the General category. The adjusted subquota for the coastwide General category fishery for the October-December period is 347.7 mt. Finally, NMFS has determined that 75 mt of the remaining Angling North large school/small medium subcategory quota of approximately 115.4 (after 50 mt transfer to the General category) should be transferred to the Angling South large school/small medium subcategory quota category. Landings of large school/small medium BFT have been substantial in the southern area so far this year, and this transfer of quota is to ensure a winter and spring Angling category fishery for North Carolina.
Under § 635.23(a)(4), NMFS may increase or decrease the General category daily retention limit of large medium and giant BFT over a range from zero (on restricted fishing days) to a maximum of three per vessel to allow for maximum utilization of the quota for BFT. Based on a review of dealer reports, daily landing trends, and the availability of BFT on the fishing grounds, NMFS has determined that a return to the one fish per vessel General category daily retention limit is appropriate and necessary for the remainder of the General category season. An adjustment to the General category daily retention limit will allow full use of the adjusted October-December subquota, while preventing overharvest and ensuring reasonable fishing opportunities in all areas. Therefore, NMFS adjusts the daily retention limit for October 19, 2001 through December 31, 2001, to one large medium or giant BFT per vessel.
Once the adjusted General category subquota for the October-December period has been attained, the coastwide fishery will be closed and NMFS will take action to reopen the New York Bight fishery. Announcement of the closure will be filed with the Office of the Federal Register, stating the effective date of closure, and further communicated through the Highly Migratory Species Fax Network, the Atlantic Tunas Information Line, NOAA weather radio, and Coast Guard Notice to Mariners. Although notification of closure will be provided as far in advance as possible, fishermen are encouraged to call the Atlantic Tunas Information Line at (888) USA-TUNA or (978) 281-9305, to check the status of the fishery before leaving for a fishing trip.
This action is taken under 50 CFR 635.23 and 635.27, is consistent with the management measures contained in the HMS FMP, and is exempt from review under Executive Order 12866.
16 U.S.C. 971
Farm Credit Administration.
Proposed rule.
The Farm Credit Administration (FCA or Agency) proposes to create and amend regulations to reflect emerging business approaches to electronic commerce (E-commerce). The proposed rule is designed to remove regulatory barriers to E-commerce and create a flexible regulatory environment that facilitates the safe and sound use of new technologies by Farm Credit System (System or FCS) institutions and their customers.
Please send your comments to us by November 21, 2001.
You may send comments by electronic mail(e-mail) to
or
The objectives of our proposed rule are to:
• Remove regulatory barriers to E-commerce;
• Create a flexible regulatory framework that facilitates the safe and sound use of new technologies by System institutions and their customers; and
• Provide a brief overview of Federal laws and regulations that facilitate E-commerce.
We are seeking comments on this proposal and also on any other FCA regulation that we could amend, or eliminate, to facilitate E-commerce.
We propose creating a new E-commerce Rule part. System institutions are increasingly using new technologies and engaging in E-commerce. In 2000, Congress enacted the “Electronic Signatures in Global and National Commerce Act” (E-SIGN) (Pub. L. 106-229), which legitimatizes the use of electronic contracts, signatures, and record keeping in many situations. E-SIGN makes it easier for System institutions to use electronic communications in transactions and realize potential cost savings. We believe many System institutions, like other financial institutions, will use electronic communications to conduct E-commerce and engage in online lending, among other activities. Thus, we believe this rulemaking and creation of a new part are necessary. The following information provides more background:
In a presidential memorandum dated November 29, 1999, Federal Agencies were asked to adopt policies, laws, and regulations on E-commerce, electronic services, and electronic transmissions. The Department of Commerce was directed to form a workgroup, which would invite public comment on how the Federal Government could adjust to the electronic environment while ensuring existing protections for the public. The Department of Commerce formed the United States Government Working Group on Electronic Commerce (USGWG). On February 1, 2000, the USGWG invited the public to identify laws or regulations that might obstruct or hinder E-commerce. (
On February 15, 2000, the FCA issued an informational memorandum advising the System of the USGWG's request for comments on facilitating E-commerce. We advised System institutions this was their opportunity to suggest how the Act or its implementing regulations could better facilitate E-commerce. The public comment period closed on March 17, 2000. The Farm Credit Council Presidents' Planning Committee (Planning Committee), Farm Credit Service of America, PCA & FLCA (FCS of America), and Pacific Coast Farm Credit Services, ACA
System institutions have wanted to communicate electronically with shareholders and do online lending. Many System institutions have an Internet Web site presence through their home pages. We have received the following comments from the System on E-commerce:
• In March 2000, the Planning Committee and FCS of America stated that FCA should undertake a rulemaking to remove barriers to E-commerce and address legal issues raised by electronic records and signatures.
• In March 2000, Pacific Coast stated that FCA regulations that require legal loan documents and disclosures to shareholders to be in writing hindered E-commerce.
• In April and May 2000, AgCredit of California PCA and FLCA,
• In April 2000, the Farm Credit Council and the System's Accounting Standards Work Group asked us to consider allowing the System to use electronic media to deliver information to shareholders.
• In March 2001, the System's E-Commerce Task Force (Task Force) identified FCA regulations that they believe may impede the System's efforts to use E-commerce. Many of those regulations pertain to disclosures or notices to shareholders, which are a subject of this proposed regulation. We will consider other suggestions of the Task Force in other rulemakings.
E-SIGN became effective October 1, 2000. FCA Bookletter BL-041 notified the System of E-SIGN's enactment and its principal provisions.
E-SIGN helps to facilitate E-commerce by providing greater legal certainty to electronic transactions. E-SIGN establishes (with some exceptions) the legal validity of electronic contracts, electronic signatures, and records maintained in electronic rather than paper form. Thus, an online contract with an electronic signature is legally equivalent to a contract signed in ink on paper. With the consent of the parties to the transaction, you can now engage in E-commerce with customers, System institutions, and others. You can also purchase and sell goods and services online or engage in online lending.
E-SIGN supercedes (with some exceptions) most State or Federal statutes or regulations, including the Farm Credit Act (Act) and its implementing regulations, that require contracts or other records to be written, signed, or in non-electronic form. Thus, in general (certain exceptions exist) we cannot create, amend, or enforce any provision of the Act or its implementing regulations requiring paper copies and handwritten signatures. For example, this means that you can now enter into electronic contracts, engage in electronic online lending, and send disclosures electronically as long as the other party consents. However, all electronic records, signatures, and contracts must satisfy other legal requirements.
As explained in more detail below, E-SIGN has exceptions for certain kinds of records. Written notification is still required for notices of default, acceleration, repossession, foreclosure, eviction, or the right to cure when a loan is secured by the primary residence of an individual. E-SIGN also does not apply to writing or signature requirements imposed under the Uniform Commercial Code (UCC), other than sections 1-107 and 1-206 and Articles 2 and 2A.
Under E-SIGN the parties to a transaction are not required to use or accept electronic records or signatures. Both parties must agree to do so.E-SIGN preserves the right to refuse to use electronic media in any transaction. Thus, the parties to a transaction retain the right to establish their own requirements for acceptable communications. E-SIGN does not prohibit or limit traditional oral or paper-based forms of communication and commerce or require that transactions be conducted electronically.
E-SIGN establishes different standards for conducting E-commerce with businesses and with consumers. Although both businesses and consumers must consent to electronic communications, E-SIGN provides certain protections and establishes mandatory procedures for consumers. Under E-SIGN, “consumer” means an individual who obtains, through a transaction, products or services used primarily for personal, family, or household purposes.
E-SIGN provides that, if any other law requires information concerning the transaction to be provided to a consumer in writing, the consumer must affirmatively consent to receiving the information electronically. The “consumer consent” provisions do not apply to business-to-business transactions. An example of a law requiring certain information to be provided to a consumer in writing is the Equal Credit Opportunity Act (ECOA), which requires a creditor to notify a consumer (but not a business) in writing of the specific reasons for rejecting a loan application or the right to learn the reasons if the consumer asks within 60 days of the creditor's notification. Under E-SIGN, you cannot make this disclosure electronically without complying with its consumer consent provisions.
Under E-SIGN, some System loans qualify as consumer transactions, while others are business transactions. You will need to distinguish between the two types of transactions to comply with E-SIGN.
If consumers do agree to E-commerce, the following provisions of E-SIGN apply:
• Consumers may choose between receiving legal notices and records electronically or in writing but can change their minds in the future (possibly subject to a fee);
• Consumer consent may apply to a particular transaction and/or to categories of records;
• The provider of an electronic record must describe the procedures: (1) The consumer must use to withdraw consent; and, (2) to update the information needed to contact the consumer electronically;
• The provider of the electronic record must inform the consumer of the ability to get a paper copy of an electronic record (possibly subject to a fee) after consent;
• Consumers who choose to receive documents electronically must demonstrate the technological capacity to do so prior to consenting to E-commerce;
• The provider of the electronic record must provide the consumer with a statement detailing the computer hardware and software needed to receive and keep the information to be sent; and
• A consumer may opt out of using electronic signatures without paying a fee if a change in the technology needed affects the consumer's ability to receive or keep information.
E-SIGN permits the parties to the transaction to determine the appropriate document integrity and signature authentication technologies. Document integrity ensures that each party signing a document will sign the same document and that the terms of the document cannot be changed after signing. Signature authentication ensures that appropriate parties sign a document and that each electronic signature is exclusively attributable to each of the parties signing the document. A party entering into an online transaction in reliance on an electronic communication must be confident of the source of the document. For example, when a System institution receives an online loan application, the System institution must be able to verify the source of the application and ensure that it is not dealing with an impostor.
An essential element for the enforceability of all electronic transactions is record keeping. E-SIGN also encourages electronic records storage. Under E-SIGN, electronic records storage satisfies any law or regulation, with certain exceptions. Electronic records may be used to satisfy requirements that an “original” be retained. Electronic records storage should result in cost savings.
E-SIGN requires that electronically stored documents accurately reflect the information in the original, whether in paper or electronic form, and be accessible to all persons entitled to review the original in a form capable of
Electronic promissory notes secured by real property are subject to different treatment under E-SIGN. E-SIGN establishes special technological and business process standards for electronic promissory notes secured by real estate. To treat an electronic version as the equivalent of a paper promissory note, you must conform to E-SIGN's detailed requirements for transferable records. A transferable record is an electronic record that: (1) Would be a note under Article 3 of the UCC if the electronic record were in writing; (2) the issuer of the electronic record has expressly agreed is a transferable record; and (3) relates to a loan secured by real property.
As we explained in BL-041, the requirements of E-SIGN are complex. We have provided only a brief overview of E-SIGN. System institutions should read E-SIGN in its entirety to see how it applies and affects their conduct of E-commerce. System institutions are encouraged to consult legal counsel before engaging in E-commerce.
In March and April 2001, the Federal Reserve Board (FRB) issued interim final rules, with requests for comments, to establish uniform standards for the electronic delivery of disclosures or notices required by Regulations B (Equal Credit Opportunity), Z (Truth in Lending), and M (Consumer Leasing).
Under the rules, consistent with E-SIGN, financial institutions, creditors, lessors, and others may deliver disclosures electronically if they obtain the consumer's consent. The FRB's rules establish uniform requirements for the timing and delivery of electronic disclosures. Disclosures may be sent by e-mail to a designated electronic address or to another location, such as an Internet Web site address. When the disclosures are not sent by e-mail, the consumer must be notified of the availability of the disclosures. Disclosures posted on a Web site must be available for at least 90 days to allow adequate time to access and retain the information. Under the FRB's rules, when disclosures are returned undelivered, there must be a good faith attempt to redeliver electronic disclosures using available information.
These rules apply only to consumer transactions and not to business transactions. System institutions will have to distinguish between consumer and business transactions to comply with the FRB's rules.
As discussed above, System institutions have wanted to use electronic media to provide disclosures to shareholders. Currently, part 620 addresses only paper disclosures. We propose amending this part to specifically allow electronic disclosures.
We are proposing to create a new regulation part on E-commerce. The new part provides an overview of E-SIGN's general rules, including E-SIGN's prohibition on using electronic communications to deliver certain notices. For example, we note that under E-SIGN, System institutions may not use electronic media to deliver certain notices of default, acceleration, repossession, foreclosure, eviction, or the right to cure when a loan is secured by the primary residence of an individual. We also note that E-SIGN does not apply to the writing or signature requirements imposed under the UCC, other than sections 1-107 and 1-206 and Articles 2 and 2A. You should review E-SIGN yourself to determine which of its other provisions apply to your institution.
We also include a reminder that System institutions must comply with FRB Regulations B, Z, and M. These regulations establish guidance on the timing and delivery of electronic disclosures to ensure an adequate opportunity to access and retain required information. Under these rules, disclosures may be delivered electronically if the consumer consents in accordance with E-SIGN. These rules were adopted as interim rules to allow for additional public comment.
This new part also explains that all terms in the Act and its regulations should be broadly interpreted and defined in the context of E-commerce. For example, the terms “mail,” “notice,” and “send” should be broadly interpreted to encompass both paper-based and electronic transactions. You should interpret “address,” “signature,” “record,” and “writing” similarly. We provide some background definitions to assist with your understanding of E-commerce.
Boards and management must ensure trust in all aspects of electronic transactions, including security procedures. What is required to establish trust varies depending on the type of transaction. We propose that System institutions' boards and management assess the risks and benefits of E-commerce and establish a policy and procedures for E-commerce. Boards and management must establish good business practices for E-commerce to ensure the safety and soundness of System institutions and compliance with law and regulation. We have identified subjects that your policy and procedures should address. This should help you understand your responsibilities and accountability. We have not established specific requirements or standards because they could become outdated quickly due to technological and customer service innovations.
Finally, this part also would establish our general requirements for your use of electronic communications with consumers and parties other than consumers. We restate E-SIGN's requirement that both parties consent to electronic communications. We need to ensure appropriate electronic communications between System institutions and their customers. A customer includes a borrower, applicant, shareholder, or lessee. A customer may always choose to receive paper copies. Also, System institutions must ensure their communications with parties other than consumers demonstrate good business practices.
At this time, we are not imposing document integrity standards for electronic disclosures or mandating the use of independent certification authorities for signature authentication. Nonetheless, boards and management should consider adopting document integrity standards and the use of independent certification authorities as part of good business practices. System institutions should consider the level of
We are proposing to amend part 620 to allow System institutions to communicate electronically with their shareholders. We are not amending any of the substantive requirements of the rule; we are only specifying that electronic communications are permitted, with the consent of the parties. The amendments allow System institutions to provide electronic disclosures and notices, including annual and quarterly reports, annual meeting information statements, report of condition of the Federal Agricultural Mortgage Corporation, and notices of significant changes in a System institution's permanent capital ratio.
As we have already stated, in adding new part 609 and amending part 620 we do not suggest our other regulations do not allow E-commerce. All of our regulations must be interpreted in light of what E-SIGN does and does not allow. We will review all our regulations over time and amend them as necessary to reflect E-SIGN's provisions and to promote E-commerce.
FCA invites comment on how particular statutes, regulations, or FCA policies affect you or your customer's use of new technologies.
We propose creating a new part on E-commerce and amending part 620 to specifically allow E-commerce. We request your comment on whether adding a new and separate part 609 on E-commerce is necessary or desired. We request comments on whether the general rules, interpretations and definitions, standards, and requirements at proposed part 609 help in providing a flexible regulatory environment and ensuring the System's safety and soundness. We also ask whether part 609 adequately addresses E-commerce and electronic communications.
We would also like your comments on whether our proposed amendments to our Disclosure to Shareholders regulations at part 620 to specifically allow electronic communications benefit you.
Please tell us what other regulatory changes you need to facilitate E-commerce, including online lending and the electronic delivery of services. Which regulations, if any, negatively affect the likelihood that a customer would choose to engage in online borrowing? Do any FCA policies impose unreasonable burdens on your institution's online technologies?
Under section 104(b) of E-SIGN, we have limited authority to interpret E-SIGN. We are authorized to issue regulations that interpret how E-SIGN applies to our regulations if they are consistent with E-SIGN and do not add to the requirements of E-SIGN. Before issuing any such regulation, however, FCA must find that the regulation is necessary and will not impose unreasonable costs on the acceptance and use of electronic records. Finally, the regulation cannot favor one technology over another.
We request comments on how provisions of E-SIGN, or any other law, affect your or your customers' ability to use new technologies. We also request comments on whether you need additional guidance on E-SIGN's statutory provisions, including consumer consent. For example, you should tell us whether you need guidance on how consumers can confirm their consent electronically or clarification on what happens when a consumer withdraws consent or requests paper copies of electronic disclosures.
Agriculture, Banks, banking, Electronic commerce, Reporting and recordkeeping requirements, Rural areas.
Accounting, Agriculture, Banks, banking, Reporting and recordkeeping requirements, Rural areas.
For the reasons stated in the preamble, we propose to add a new part 609 and amend part 620 of chapter VI, title 12 of the Code of Federal Regulations to read as follows:
1. Add a new part 609 to subchapter B to read as follows:
Sec. 5.9 of the Farm Credit Act (12 U.S.C. 2243); 5 U.S.C. 301; Pub. L. 106-229 (114 Stat. 464).
The Farm Credit Administration (FCA) wants to create a flexible regulatory environment that facilitates electronic commerce (E-commerce) and allows Farm Credit System (System) institutions and their customers to use new technologies. System institutions may use E-commerce but must establish good business practices that ensure safety and soundness while doing so.
(a)
(b)
(c)
(d)
(1) Would be a note under Article 3 of the Uniform Commercial Code if the electronic record were in writing;
(2) The issuer of the electronic record has expressly agreed is a transferable record; and
(3) Relates to a loan secured by real property.
(e)
(f)
(g)
The regulations in this part require fair practices and meaningful disclosures for certain lending and leasing activities. System institutions must comply with Federal Reserve Board Regulations B (Equal Credit Opportunity), Z (Truth in Lending), and M (Consumer Leasing) (12 CFR parts 202, 226 and 213).
(a) E-SIGN supercedes existing statutes and regulations, including the Act and its implementing regulations that require paper copies and handwritten signatures. E-SIGN requires that statutes and regulations be interpreted to allow E-commerce as long as the safeguards of E-SIGN are met and its exceptions recognized. Generally, an electronic record or signature satisfies any provision of the Act or its implementing regulations that require records and signatures to be written, signed, or in paper form.
(b) System institutions may interpret the Act and its implementing regulations broadly to allow electronic transmissions, communications, records, and submissions, as provided by E-SIGN. This means that the terms address, copy, distribute, document, file, mail, notice, notify, record, provide, send, signature, sent, written, writing, and similar words generally should be interpreted to permit electronic transmissions, communications, records, and submissions.
We provide the following definitions that apply to this part:
(a)
(b)
(c)
(d)
(1) To send or submit information electronically; or
(2) A communication received electronically.
(e)
The FCA supports E-commerce and wants to facilitate it and other new technologies and innovations to enhance the efficient conduct of business and the delivery of safe and sound credit and closely related services. Through E-commerce, System institutions can improve customer service, access information, and provide alternate communication systems. At the same time, E-commerce presents challenges and risks that your board must carefully consider in advance. Before engaging in E-commerce, you must weigh its business risks against its benefits. You must also adopt an E-commerce policy and procedures to ensure your institution's safety and soundness and compliance with law and regulation. Among other concerns, the policy and procedures must address:
(a) Security and integrity of System institution and borrower data;
(b) The privacy of your customers as well as visitors to your Web site;
(c) Notices to customers or visitors to your Web site when they link to an affiliate or third party Web site;
(d) Capability of vendor or application providers;
(e) Business resumption after disruption;
(f) Fraud and money laundering;
(g) Intrusion detection and management;
(h) Liability insurance; and
(i) Prompt reporting of known or suspected criminal violations associated with E-commerce to law enforcement authorities and FCA under part 617 of this chapter.
When applicable, business plans must contain an analysis of:
(a) The strategic and operational aspects of E-commerce; and
(b) Potential and existing customers that can use E-commerce.
When applicable, internal systems and controls must provide reasonable assurances that System institutions will:
(a) Follow and achieve business plan objectives and policy and procedure requirements regarding E-commerce; and
(b) Prevent and detect material deficiencies on a timely basis.
Records stored electronically must be accurate, accessible, and reproducible for later reference.
(a)
(b)
(c)
2. The authority citation for part 620 continues to read as follows:
Secs. 5.17, 5.19, 8.11 of the Farm Credit Act (12 U.S.C. 2252, 2254, 2279aa-11); secs. 424 of Pub. L. 100-233, 101 Stat. 1568, 1656.
3. Amend § 620.1 as follows:
a. Revise paragraph (o);
b. Redesignate existing paragraph (r) as new paragraph (s); and
c. Add a new paragraph (r).
(o)
(r) Signed, when referring to paper form, means a manual signature, and, when referring to electronic form, means marked in a manner that authenticates each signer's identity.
4. Amend § 620.2 as follows:
a. Remove the first sentence and add three new sentences in its place in paragraph (a);
b. Revise paragraph (b) introductory text;
c. Remove the word “filed” and add in its place, the word “required” in paragraph (b)(3)(i);
d. Remove the words “typed or” from the second sentence in paragraph (b)(3)(ii); and
e. Redesignate existing paragraphs (d), (e), (f), (g), (h), and (i) as newly designated paragraphs (e), (f), (g), (h), (i), and (j) consecutively;
f. Add new paragraph (d); and
g. Remove the words “mail or otherwise furnish” and add in their place, the word “provide” in newly designated paragraph (i)(3).
(a) Copies of each report required by this section, including financial statements and related schedules, exhibits, and all other papers and documents that are a part of the report must be sent to the Chief Examiner, or to another office designated by the Chief Examiner. If sending paper copies, send three copies to Chief Examiner, Farm Credit Administration, 1501 Farm Credit Drive, McLean, VA 22102-5090. If providing electronic copies, send according to our instructions to you. * * *
(b) At least one of the reports provided to the Farm Credit Administration shall be dated and manually signed on behalf of the institution by:
(d) Shareholders must consent to electronic disclosures of reports required by this part.
5. Amend § 620.4 as follows:
a. Remove the word “distributing” and add in its place, the word “providing” in the heading; and
b. Remove the word “distribute” and add the word “provide” each place it appears in paragraphs (a), (b)(1), and (b)(2).
6. Amend § 620.5 as follows:
a. Remove the word “distributed” and add in its place, the word “provided” in paragraph (a)(3); and
b. Remove the word “signed” and add in its place, the words “manually signed, or if in electronic form, signed in a manner that authenticates each signer's identity” in paragraph (m)(2).
7. Amend § 620.11 by revising the second sentence of paragraph (b)(6) to read as follows:
(b) * * *
(6) * * * In addition, a statement from the persons who verify the institution's financial statements shall be included as an exhibit, indicating whether or not the change is to an alternative principle which in their judgment is preferable under the circumstances, except that no such statement need be filed when the change is made in response to a standard adopted by the Financial Accounting Standards Board which requires such change.
8. Revise § 620.15 to read as follows:
(a) Each Farm Credit bank and direct lender association shall prepare and provide the Farm Credit Administration and shareholders a notice, within 30 days following the monthend that the institution initially determines that it is not in compliance with the minimum permanent capital standard prescribed under § 615.5205 of this chapter.
(b) An institution that has given notice to shareholders pursuant to paragraph (a) of this section or subsequent notice pursuant to this paragraph shall also prepare and provide the Farm Credit Administration and shareholders a notice within 45 days following the end of any subsequent quarter at which the institution's permanent capital ratio decreases by one-half of 1 percent or more from the level reported in the most recent notice provided to shareholders.
(c) Each institution required to prepare a notice under § 620.15(a) or (b)
9. Amend § 620.17 by removing the words “distribute” and adding in its place, the word “provide” in paragraph (b)(4).
10. Amend § 620.20 as follows:
a. Remove the word “distributing” and add in its place, the word “providing” in the heading; and
b. Remove the word “distribute” and add in its place, the word “provide” in paragraph (a).
11. Amend § 620.21 as follows:
a. Remove the words “furnished a letter” and add in their place, the words “provided a notice” in the first sentence of paragraph (c)(3);
b. Remove the words “contained in the letter” at the end of the first sentence in paragraph (c)(3);
c. Add the words “paper mail or electronic” before the word “mail” in each place it appears in paragraphs (d)(3)(i)(A), (d)(3)(i)(B), (d)(3)(ii)(A), and (d)(3)(ii)(B);
d. Revise paragraph (d)(5) to read as follows:
(d) * * *
(5) For each nominee who is not an incumbent director, except a nominee from the floor, provide the information referred to in § 620.5(j) and (k) and § 620.21(d)(4). If shareholders will vote by paper mail or electronic mail ballot upon conclusion of all sessions, each floor nominee must provide the information referred to in § 620.5(j) and (k) and § 620.21(d)(4) in paper or electronic form to the association within the time period prescribed by the association's bylaws. If the association's bylaws do not prescribe a time period, state that each floor nominee must provide the disclosure to the association within 5 business days of the nomination. The association shall ensure that the information is provided to the voting shareholders by delivering the ballots for the election of directors in the same format as the comparable information contained in the association's annual meeting information statement. If shareholders will not vote by paper mail or electronic mail ballot upon conclusion of all sessions, each floor nominee must provide the information referred to in § 620.5(j) and (k) and § 620.21(d)(4) in paper or electronic form at the first session at which voting is held.
12. Amend § 620.30 by removing the words “distribute or mail” and adding in their place, the word “provide” in the second sentence.
13. Amend § 620.40 as follows:
a. Remove the words “distribution of” and add in their place, the words “providing of the” in the heading;
b. Remove the word “distribute” and add in its place, the word “provide” in paragraph (b);
c. Remove the words “mail or otherwise furnish to the requestor a copy of” and add in their place, the words “provide the requester” in paragraph (c); and
d. Revise paragraph (d):
(d) The Corporation shall provide copies of the annual report of condition to the Farm Credit Administration's Office of Secondary Market Oversight within 120 days of its fiscal year-end. If providing paper copies, send three copies to Office of Secondary Market Oversight, Farm Credit Administration, 1501 Farm Credit Drive, McLean, VA 22102-5090. If providing electronic copies, send according to our instructions to you.
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to fully approve the operating permit programs submitted by the California Air Resources Board (CARB) on behalf of Amador County Air Pollution Control District (APCD), Butte County Air Quality Management District (AQMD), Calaveras County APCD, Colusa County APCD, El Dorado County APCD, Feather River AQMD, Glenn County APCD, Great Basin Unified APCD, Imperial
Comments on the program revisions discussed in this proposed action must be received in writing by November 21, 2001.
Written comments on this proposed action should be addressed to Gerardo Rios, Acting Chief, Permits Office, Air Division (AIR-3), EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105. You can inspect copies of the program submittals, and other supporting documentation relevant to this action, during normal business hours at Air
Gerardo Rios, EPA Region IX, at (415) 744-1259 or
This section provides additional information by addressing the following questions:
The CAA Amendments of 1990 required all state and local permitting authorities to develop operating permit programs that met certain federal criteria. In implementing the operating permit programs, the permitting authorities require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. One goal of the operating permit program is to improve compliance by issuing each source a permit that consolidates all of the applicable CAA requirements into a federally enforceable document. By consolidating all of the applicable requirements for a facility, the source, the public, and the permitting authorities can more easily determine what CAA requirements apply and how compliance with those requirements is determined.
Sources required to obtain an operating permit under this program include “major” sources of air pollution and certain other sources specified in the CAA or in EPA's implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain permits. Examples of major sources include those that have the potential to emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen oxides ( NO
Where an operating permit program substantially, but not fully, met the criteria outlined in the implementing regulations codified at 40 Code of Federal Regulations (CFR) part 70, EPA granted interim approval contingent on the state revising its program to correct the deficiencies. Because all twenty-four operating permit programs substantially, but not fully, met the requirements of part 70, EPA granted interim approval to each program in three separate rulemakings, published on May 3, 1995 (60 FR 21720) for nineteen of the twenty-four districts, on July 13, 1995 (60 FR 36065) for Glenn County APCD, Tehama County APCD, Lake County AQMD, and Shasta County APCD, and on December 7, 1995 (60 FR 62758) for Mariposa County APCD. Each interim approval notice described the conditions that had to be met in order for the programs to receive full approval. Since that time, each of the twenty-four districts have revised their interimly approved operating permit program at least once. These changes were necessary to correct the conditions for full approval; but some districts made other changes as well. Table 1 below lists the dates of submission by CARB of each of the revised district programs.
This document describes changes that have been made to the twenty-four operating permit programs since EPA granted interim approval. These changes include those made by the districts to resolve interim approval deficiencies, as well as other rule and program changes submitted to EPA for approval.
On May 22, 2000, EPA promulgated a rulemaking that extended the interim approval period of 86 operating permits programs until December 1, 2001. (65 FR 32035) The action was subsequently challenged by the Sierra Club and the New York Public Interest Research Group (NYPIRG). In settling the litigation, EPA agreed to publish a notice in the
EPA received a comment letter from one organization on what they believe to be deficiencies with respect to title V programs in California. EPA takes no action on those comments in today's action and will respond to them by December 1, 2001. As stated in the
As discussed earlier, the title V programs for the twenty-four districts included in today's rulemaking were given interim approval on May 3, 1995 (60 FR 21720) for nineteen of the twenty-four Districts; on July 13, 1995 (60 FR 36065) for Glenn County APCD, Tehama County APCD, Lake County AQMD, and Shasta County APCD; and on December 7, 1995 (60 FR 62758) for Mariposa County APCD. As stipulated in each of those rulemakings, full approval of the specific district operating permit program was made contingent upon satisfaction of certain conditions. We have included below a discussion of these conditions and a summary of how the twenty-four districts revised their part 70 programs and rules to meet the conditions required for full program approval. We have structured this section by categorizing each of the required changes into either Group 1 or Group 2. Group 1 consists of the eleven (11) conditions that are common to all twenty-four districts,
Unless otherwise noted, the following eleven conditions are common to all twenty-four districts that are the subject of today's proposed action.
In addition, one of EPA's conditions for full title V program approval was the California Legislature's revision of the Health and Safety Code to eliminate the provision that exempts “any equipment used in agricultural operations in the growing of crops or the raising of fowl or animals” from the requirement to obtain a permit.
In evaluating the impact of the Health and Safety Code exemption, EPA believes there are a couple of key factors to consider. First, many post-harvest activities are not covered by the exemption and, thus, are still subject to title V permitting. For example, according to the California Air Resources Board (CARB), the Health and Safety Code exemption does not include activities such as milling and crushing, or canning or cotton ginning operations. Activities such as these are subject to review under the State's title V programs.
Based, in part, on these factors, EPA has tentatively concluded that requiring the immediate commencement of title V permitting of the limited types of agricultural activities presently subject to the exemption, without a better understanding of the sources and their emissions, would not be an appropriate utilization of limited local, state and federal resources. As a result, despite the State of California's failure to eliminate the agricultural permitting exemption, EPA is proposing to grant full approval to local Air District operating permit programs and allow a deferral of title V permitting of agricultural operations involved in the growing of crops or the raising of fowl or animals for a further brief period, not to exceed three years. During the deferral period, we expect to develop the program infrastructure and experience necessary for effective implementation of the title V permitting program to this limited category of sources.
EPA believes it is appropriate to defer permitting for this limited category of agricultural sources because the currently available techniques for determining emissions inventories and for monitoring emissions (e.g., from irrigation pumps and feeding operations) are problematic and will be dramatically enhanced by several efforts currently being undertaken with the cooperation and participation of the operators and agricultural organizations, as well as EPA, other federal agencies, and the State and local air pollution agencies. For example, the National Academy of Sciences is undertaking a study addressing emissions from animal feeding operations. Their report is due next year. In addition, EPA's Office of Air and Radiation is working with the U.S. Department of Agriculture to better address the impact of agricultural operations on air quality. We consider the effort to evaluate the existing science, improve on assessment tools, collect additional data, remove any remaining legal obstacles, and issue any necessary guidance within the three year deferral time frame to be ambitious. We welcome comments on other areas that might also warrant study, as well as ways that this work might be done more quickly.
During the interim deferral period, EPA will continue to work with the agricultural industry and our state and federal regulatory partners to pursue, wherever possible, voluntary emission reduction strategies. At the end of this period, EPA will, taking into consideration the results of these studies, make a determination as to how the title V operating permit program will be implemented for any potential major agricultural stationary sources.
In addition to the interim approval conditions noted above for all districts, numerous district-specific changes were also identified by EPA as conditions for full approval of districts' operating permit programs. These conditions are discussed below:
(1)
ACAPCD addressed this condition by revising Rule 500 to require final action no later than the appropriate number of months “after the complete application is received” rather than “after the application is deemed complete.”
(b) ACAPCD was required to revise the definition of “potential to emit” in Rule 500 II.AA. to clarify that only federally-enforceable limitations may be considered in determining a source's potential to emit under title V. Subsequent litigation has affected EPA's consideration of this issue. In
ACAPCD revised the definition which now states that “[p]hysical and operational limitations on the emissions unit shall be treated as part of its design, if the limitations are set forth in permit conditions or in rules or regulations that are legally and practicably enforceable by U.S. EPA and citizens or by the District.” EPA proposes to approve this revision because ACAPCD's rule is consistent with the current meaning of potential to emit at 40 CFR 70.2. EPA has issued several guidance memoranda that discuss how the court rulings affect the definition of potential to emit under CAA § 112, New Source Review (NSR) and Prevention of Significant Deterioration (PSD) programs, and title V.
EPA will rely on ACAPCD implementing this new definition in a manner that is consistent with the court's decisions and EPA policies. In addition, EPA wants to be certain that absent federal and citizen's enforceability, Amador County's enforcement program still provides sufficient incentive for sources to comply with permit limits. This proposal provides notice to Amador about our expectations for ensuring the permit limits they impose are enforceable as a practical matter (i.e., practicably enforceable) and that its enforcement program will still provide sufficient compliance incentive. In the future, if ACAPCD does not implement the new definition consistent with our guidance, and/or has not established a sufficient compliance incentive absent Federal and citizen's enforceability, EPA could find that the District has failed to administer or enforce its program and may take action to notify the District of such a finding as authorized by 40 CFR 70.10(b)(1).
(c) ACAPCD was required to revise Rule 500 V.I.2 and 3 to require notification by the source of operational flexibility changes to both the EPA and the District as required by 40 CFR 70.4(b)(12).
ACAPCD addressed this condition by revising both sections of Rule 500 to require that written notice be provided to both USEPA and the APCO as required by 40 CFR 70.4(b)(12).
(d) ACAPCD was required to revise the definition of “affected state” in Rule 500 II.C. to allow for the treatment of Tribal Authorities as affected states if the Authority request such treatment under the Tribal Air Regulations.
ACAPCD addressed this requirement by revising this definition, which now states that an affected State “is any State that: (1) Is contiguous with California and whose air quality may be affected by a permit action, or (2) is within 50 miles of the source for which a permit action is being proposed.”
(2)
BCAQMD addressed this condition by revising Rule 1101 Section 5.3.6 (please note that BCAQMD has renumbered its rule) to require final action no later than nine months “after the complete application is received” rather than “after the application is deemed complete.”
(b) BCAQMD was required to revise Rule 1101 IV.B.4. to incorporate the compliance provisions of 40 CFR 70.7(e)(2)(v). Rule 1101 did not state, as does § 70.7(e)(2)(v), that until the District takes final action to issue or deny the requested permit modification or determines that it is a significant modification, the source must comply with both the applicable requirements governing the change and the proposed permit terms and conditions, but the source need not comply with the existing permit terms and conditions being modified. Rule 1101 also needed to be revised to state that if the source fails to comply with the permit terms and conditions in the requested modification, the existing permit terms and conditions being modified may be enforced against it.
BCAQMD addressed this requirement by revising Rule 1101 Section 4.2.4 to eliminate the ability for sources to commence operation of proposed modifications until the APCO takes final action to approve the permit. This revision corrects the deficiencies in Rule 1101 that EPA had identified as interim approval issues.
(c) BCAQMD was required to revise Rule 1101 IV.B.3. to limit the discretion of the APCO to authorize sources to commence operations of significant permit modifications prior to final permit action to when the changes meet the criteria of 40 CFR 70.5(a)(1)(ii). Rule 1101 IV.B.3. allowed the APCO to authorize sources to commence operations of significant permit modifications when the proposed permit revision is publicly noticed but prior to final permit action. Part 70 prohibits sources from making significant permit modification changes prior to final permit issuance unless the changes are subject to preconstruction review under § 112(g) of the Act or preconstruction review programs approved into the SIP pursuant to part C or D of title I of the Act, and the changes are not otherwise prohibited by the source's existing part 70 permit.
BCAQMD addressed this requirement by revising Rule 1101 Section 4.2.3 to limit the discretion of the APCO to authorize sources to commence operations of a significant permit modification prior to final action only where the changes meet the criteria of 40 CFR 70.5(a)(1)(ii).
(3)
(4)
Colusa County APCD (CCAPCD) addressed this requirement by revising Rule 3.17 d.2.D to include the appropriate compliance provisions from 40 CFR 70.7(e)(2)(v).
(b) The District needed to revise Rule 3.17 d.2.C. to limit the discretion of the APCO to authorize sources to commence operations of significant permit modifications prior to final permit action to when the changes meet the criteria of 40 CFR 70.5(a)(1)(ii). At the time of interim approval, Rule 3.17 d.2.C. allowed the APCO to authorize sources to commence operations of significant permit modifications when the proposed permit revision was publicly noticed but prior to final permit action. Part 70 prohibits sources from making significant permit modification changes prior to final permit issuance unless the changes are subject to preconstruction review under § 112(g) of the Act or preconstruction review programs approved into the SIP pursuant to part C or D of title I of the Act and the changes are not otherwise prohibited by the source's existing part 70 permit.
CCAPCD addressed this requirement by revising Rule 317 d.2.C to limit the discretion of the APCO to authorize sources to commence operations of a significant permit modification prior to final action only where the changes meet the criteria of 40 CFR 70.5(a)(1)(ii).
(5)
El Dorado County APCD (EDCAPCD) addressed this requirement by revising its definition of minor modification in Rule 522.2(U) to include the constraining language from 40 CFR 70.7(e)(2)(i)(B) regarding minor permit modification procedures.
(b) EDCAPCD was required to revise Rule 522's permit content requirements to provide that every permit contain a provision stating that no permit revision shall be required, under any approved economic incentives, marketable permits, emissions trading, and other similar programs or processes for changes that are provided for in the permit as required by 40 CFR 70.6(a)(8). EDCAPCD addressed this requirement by modifying Rule 522.6(B)(21) to add this provision from § 70.6(a)(8).
(6)
Feather River AQMD (FRAQMD) addressed this requirement by revising their definition of minor permit modification in Rule 10.3 B.21 to include the constraining language from 40 CFR 70.7(e)(2)(i)(B) regarding minor permit modification procedures.
(b) Feather River AQMD needed to revise Rule 10.3's permit content requirements to provide that every permit contain a provision stating that no permit revision shall be required, under any approved economic incentives, marketable permits, emissions trading, and other similar programs or processes for changes that are provided for in the permit as required by 40 CFR 70.6(a)(8).
FRAQMD addressed this requirement by modifying Rule 10.3 F.2.u to add this provision from § 70.6(a)(8).
(c) The District was required to revise Rule 10.3 D.2.c. to limit the discretion of the APCO to authorize sources to commence operation of significant permit modifications prior to final permit action to when such changes meet the criteria of 40 CFR 70.5(a)(1)(ii). At the time of interim approval, Rule 10.3 D.2.c. allowed the APCO to authorize sources to commence operations of significant permit modifications when the proposed permit revision was publicly noticed but prior to final permit action. Part 70 prohibits sources from making significant permit modification changes prior to final permit issuance unless the changes are subject to preconstruction review under § 112(g) of the Act or preconstruction review programs approved into the SIP pursuant to part C or D of title I of the Act and the changes are not otherwise prohibited by the source's existing part 70 permit.
FRAQMD addressed this requirement by revising Rule 10.3 D.2.c. to limit the discretion of the APCO to authorize sources to commence operation of a significant permit modification prior to final action only where the changes meet the criteria of 40 CFR 70.5(a)(1)(ii).
(7)
GCAPCD addressed this requirement by revising Article VIII Section V.I.3.e to require that written notice be provided to both USEPA and the APCO as required by 40 CFR 70.4(b)(12).
(b) GCAPCD was required to revise Article VIII V.C.6.3. to take final action on early reduction applications within nine months of receipt of the complete application rather than within nine months of the date the application was deemed complete as required by 40 CFR 70.4(b)(11)(iii).
GCAPCD addressed this condition by revising Article VIII V.C.6.3 to require final action no later than nine months “after the complete application is received” rather than “after the application is deemed complete.”
(8)
Great Basin Unified APCD (GBUAPCD) addressed this requirement by deleting the phrase “or is discovered to be subject” from Rule 217 IV.B.1.b.
(b) The District was required to revise all deadlines for final permit action in Rule 217 V.C. (except for C.1. and C.5.) to be no later than the appropriate number of months after the complete application is received, rather than after the application is deemed complete, as required by 40 CFR 70.4(b)(11)(iii) and 70.7(a)(2).
GBUAPCD addressed this requirement by changing the deadlines in Rule 217 V.C.2, C.3, C.4, and C.6 to require final action no later than the appropriate number of months “after the complete application is received” rather than “after the application is deemed complete.”
(c) The District needed to revise Rule 217 V.I.2 and V.I.3.e. to require notification by the source of operational flexibility changes to both the EPA and the District as required by 40 CFR 70.4(b)(12).
GBUAPCD addressed this requirement by modifying Rule 217 V.I.2 and V.I.3.e to require that written notice be provided to both USEPA and the APCO as required by 40 CFR 70.4(b)(12).
(9)
ICAPCD addressed this condition by revising Rule 900 to require final action no later than nine months “after the complete application is received” rather than “after the application is deemed complete.”
(b) ICAPCD was required to submit a complete Acid Rain Program consistent with 40 CFR part 72 and title IV of the Act. ICAPCD submitted a complete Acid Rain program (Rule 901) that was determined to be acceptable to the EPA Administrator as part of the District's title V operating permits program. (
(c) ICAPCD was required to revise Rule 900 E.9.b. and c. to require notification by the source of operational flexibility changes to both the EPA and the District as required by 40 CFR 70.4(b)(11)(iii).
ICAPCD revised both sections of Rule 900 to require that written notice be provided to both USEPA and the APCO as required by § 70.4(b)(12).
(10)
(11)
LCAQMD addressed this condition by adding new Section 12.580(a)(5) to require that EPA and the District be notified by the source in writing of all operational flexibility changes at least 30 days prior to the change as required by 40 CFR 70.4(b)(12).
(b) The District's maintenance exemption in Section 500 did not prohibit sources from violating some types of permit terms (including those that limit emissions, such as a work practice standard or a requirement to continuously apply a control technology) while shutting down control equipment for maintenance and, therefore, the rule did not allow the District the authority to enforce against all types of violations, as required under 40 CFR 70.11. The District was required to narrow the maintenance exemption in Section 500 to state that violations of applicable federal requirements including part 70 permit terms may not be automatically exempted.
LCAQMD addressed this requirement by narrowing Section 500 to require that all applicable federal requirements be met during periods when maintenance and scheduled outages of abatement or control equipment occur.
(c) The District rule needed to be clarified to state that citizen enforcement, as well as EPA enforcement, of Clean Air Act requirements is not affected by APCO discretion, as expressed in Sections 500 and 510, to not pursue an enforcement action.
LCAQMD addressed this condition by revising Section 500 to clarify that any discretion exercised by the APCO shall not impede or otherwise interfere with the ability of the EPA, or citizens, to bring an enforcement action or suit under the CAA.
(d) The District was required to revise Section 510 to require the actions that are “beyond the reasonable control of the source operator” to also meet the criteria in the rule for qualifying for an exemption.
LCAQMD addressed this requirement by amending Section 510 to require that all the listed criteria must be met in order for the Air Pollution Control Officer to not pursue an enforcement action. Further, Lake County amended the rule to eliminate the phrase, “are not a violation of an emission limitation contained in a permit or rule,” and added a statement to clarify that any discretion exercised by the APCO shall not impede or otherwise interfere with the ability of the EPA, or citizens, to bring an enforcement action or suit under the CAA.
(e) Lake County was required to revise all deadlines for final permit action in Chapter VII, Section 12.520 (except for (a) and (e)) to be no later than the appropriate number of months after the complete application is received, rather than after the application is deemed complete, as required by 40 CFR 70.4(b)(11)(iii) and 70.7(a)(2).
LCAQMD addressed this condition by revising Sections 12.520(b), (c), (d) and (f) to require final action no later than the appropriate number of months “after the complete application is received” rather than “after the application is deemed complete.”
(12)
Lassen County APCD (LCAPCD) addressed this condition by revising Rule 7:6 c.2, 3, 4, and 6 to require final action no later than the appropriate number of months “after the complete application is received” rather than “after the application is deemed complete.”
(b) LCAPCD needed to revise Rule 7:5 b.4. to clarify that the APCO's approval of a minor permit modification prior to EPA's review is not a final permit action. Rule 7:5 b.4. allowed the APCO to approve minor permit modifications changes prior to EPA's review; however, 40 CFR 70.7(e)(2)(iv) precludes the District from issuing a final permit modification until after EPA's review period or until EPA has notified the District that EPA will not object, although the District may approve the permit modification prior to that time.
LCAQMD addressed this condition by revising Rule 7:5 b.4 to eliminate the ability for sources to commence
(c) LCAPCD was required to revise Rule 7.5 b.4. to incorporate the compliance provisions of 40 CFR 70.7(e)(2)(v). Regulation VII did not state, as does § 70.7(e)(2)(v), that until the District takes final action to issue or deny the requested permit modification or determines that it is a significant modification, the source must comply with both the applicable requirements governing the change and the proposed permit terms and conditions, but the source need not comply with the existing permit terms and conditions being modified. Regulation VII also needed to be revised to state that if the source fails to comply with the permit terms and conditions in the requested modification, the existing permit terms and conditions being modified may be enforced against it.
LCAQMD addressed this condition by revising Rule 7:5.b.4 to eliminate the ability for sources to commence operation of proposed modifications until the APCO takes final action to approve the permit. See above.
(d) LCAPCD needed to revise Rule 7:5 b.3. to limit the discretion of the APCO to authorize sources to commence operations of significant permit modifications prior to final permit action to when the changes meet the criteria of 40 CFR 70.5(a)(1)(ii). Rule 7:5 b.3. allowed the APCO to approve significant permit modifications and the source to commence operations of those modifications prior to the EPA's review and final permit action. Part 70 prohibits sources from making significant permit modification changes prior to final permit issuance unless the changes are subject to preconstruction review under § 112(g) of the Act or preconstruction review programs approved into the SIP pursuant to part C or D of title I of the Act and the changes are not otherwise prohibited by the source's existing part 70 permit.
LCAQMD addressed this requirement by revising Rule 7:5 b.3 to limit the discretion of the APCO to authorize sources to commence operations of a significant permit modification prior to final action only where the changes meet the criteria of 40 CFR 70.5(a)(1)(ii).
(e) LCAPCD was required to revise Rule 7:6 i.2. and 3. to require notification by the source of operational flexibility changes to both the EPA and the District as required by 40 CFR 70.4(b)(11)(iii).
LCAQMD addressed this condition by revising Rule 7:6 i.2 and 3 to require that written notice be provided to both USEPA and the APCO as required by 40 CFR 70.4(b)(12).
(13)
(14)
Mendocino County APCD (MCAPCD) addressed this requirement by revising the necessary portions of Rule 5.520 to require final action no later than the appropriate number of months “after the complete application is received” rather than “after the application is deemed complete.”
(b) MCAPCD was required to revise Regulation 5, Rule 5.580(b) and (c) to require notification by the source of operational flexibility changes to both the EPA and the District as required by 40 CFR 70.4(b)(11)(iii).
MCAPCD addressed this condition by revising Rule 5.580(b) and (c) to require that written notice be provided to both USEPA and the APCO as required by 40 CFR 70.4(b)(12).
(c) MCAPCD was required to restrict insignificant activities to those that are not likely to be subject to an applicable requirement and emit less than-District-established emission levels. EPA had recommended that the District establish separate emission levels for HAPs and for other regulated pollutants and demonstrate that these emission levels are insignificant compared to the level of emissions from the type of units that are required to be permitted or subject to applicable requirements.
MCAPCD addressed this condition by adding a definition of insignificant activities at Rule 5.200(i2) to be any activity, or combination of similar activities, that generates less than 5 tons per year of carbon monoxide, or less than 2 tons per year of any other criteria pollutant (VOC, PM, NO
(15)
MCAPCD revised Rule 2.13 to require final action no later than the appropriate number of months “after the complete application is received” rather than “after the application is deemed complete.”
(b) MCAPCD was required to revise Rule 2.13 IV.B.4. to clarify that the APCO's approval of a minor permit modification prior to EPA's review is not a final permit action. Rule 2.13 IV.B.4. allowed the APCO to approve minor permit modification changes prior to the EPA's review; however, 40 CFR 70.7(e)(2)(iv) precludes the District from issuing a final permit modification until after EPA's review period or until the EPA has notified the District that EPA will not object, although the District may approve the permit modification prior to that time.
MCAPCD addressed this requirement by adding language to Rule 2.13 that clarifies the conditions under which a source can implement a permit modification that has not yet been approved by the APCO and EPA. The new language includes the criteria that a source must satisfy in order to make a change prior to permit issuance, and states that “[a]llowing a stationary source to make a change prior to permit issuance does not constitute final action and does not preclude the District from denying the change or requiring the change to be processed as a significant permit modification, nor does it preclude the U.S. EPA from objecting to the permit modification.”
(c) MCAPCD was required to revise Rule 2.13 IV.B.4. to incorporate the compliance provisions of 40 CFR 70.7(e)(2)(v). Rule 2.13 did not state, as does § 70.7(e)(2)(v), that until the District takes final action to issue or deny the requested permit modification or determines that it is a significant modification, the source must comply with both the applicable requirements governing the change and the proposed permit terms and conditions, but the source need not comply with the existing permit terms and conditions being modified. Rule 2.13 also had to be revised to state that if the source fails to comply with the permit terms and
MCAPCD addressed this requirement by revising Rule 2.13 to include the appropriate compliance provisions from 40 CFR 70.7(e)(2)(v).
(d) MCAPCD was required to revise Rule 2.13 IV.B.3. to limit the discretion of the APCO to authorize sources to commence operations of significant permit modifications prior to final permit action to when the changes meet the criteria of 40 CFR 70.5(a)(1)(ii). Rule 2.13 IV.B.3. allowed the APCO to approve significant permit modifications and the source to commence operations of those modifications prior to the EPA's review and final permit action. Part 70 prohibits sources from making significant permit modification changes prior to final permit issuance unless the changes are subject to preconstruction review under § 112(g) of the Act or preconstruction review programs approved into the SIP pursuant to part C or D of title I of the Act and the changes are not otherwise prohibited by the source's existing part 70 permit.
MCAPCD addressed this condition by revising Rule 213 to limit the discretion of the APCO to authorize sources to commence operations of a significant permit modification prior to final action only where the changes meet the criteria of 40 CFR 70.5(a)(1)(ii).
(e) MCAPCD was required to revise Rule 2.13 V.I.2 and V.I.3. to require notification by the source of operational flexibility changes to both the EPA and the District as required by 40 CFR 70.4(b)(11)(iii).
MCAPCD revised both sections of Rule 2.13 to require that written notice be provided to both USEPA and the APCO as required by 40 CFR 70.4(b)(12).
(16)
NCUAQMD addressed this condition by revising Rule 520 to require final action no later than nine months “after the complete application is received” rather than “after the application is deemed complete.”
(b) NCUAQMD was required to submit a complete Acid Rain Program consistent with 40 CFR part 72 and title IV of the Act.
NCUAQMD submitted a complete Acid Rain Program (Rules 300 and 690) that was determined to be acceptable to the EPA Administrator as part of the District's title V operating permits program. (
(c) NCUAQMD was required to revise Regulation 5, Rule 580(b) and (c) to require notification by the source of operational flexibility changes to both the EPA and the District as required by 40 CFR 70.4(b)(11)(iii).
NCUAQMD addressed this condition by revising both sections of Rule 580 to require that written notice be provided to both USEPA and the APCO as required by 40 CFR 70.4(b)(12).
(17)
(18)
NSCAPCD addressed this requirement by changing the deadlines in Rule 5.520(b),(c),(d), and (f) to require final action no later than the appropriate number of months “after the complete application is received” rather than “after the application is deemed complete.”
(b) NSCAPCD needed to revise Rule 5.580(b) and (c) to require notification by the source of operational flexibility changes to both the EPA and the District as required by 40 CFR 70.4(b)(11)(iii).
NSCAPCD addressed this requirement by modifying Rule 5.580(b) and (c) to require sources to provide written notice to USEPA, in addition to the APCO, in advance of implementing the operational flexibility provisions of the District's Rule.
(c) The District needed to revise Policy A-33A (Small Emission Source Exemptions) to state that the APCO may not exempt from the requirement for permitting any process, article, machine, equipment, device or contrivance at a title V source if that process, etc. is subject to an applicable federal requirement. NSCAPCD also had to revise the Policy to restrict the exemptions (including any director's discretion provisions) to activities that emit less than District-established emission levels for HAPs. EPA also required the District to demonstrate that these emission levels are insignificant compared to the level of emissions from and type of units that are required to be permitted or subject to applicable requirements.
NSCAPCD elected to address this requirement by eliminating the Small Emission Sources Exemptions Policy (A-33A) from their operating permits program.
(19)
PCAPCD addressed this requirement by revising Sections 219.1 and 219.2 of Rule 507 to make the required changes regarding the definition of “major stationary source.”
(b) The District was required to revise Section 302.6 of Rule 507 to limit the discretion of the APCO to authorize sources to commence operations of significant permit modifications prior to final permit action to when the changes meet the criteria of 40 CFR 70.5(a)(1)(ii). At the time of interim approval, Section 302.6 of Rule 507 allowed the APCO to authorize sources to commence operation of significant permit modifications when the proposed permit was publicly noticed but prior to final permit modification. Part 70 prohibits sources from making significant permit modification changes prior to final permit issuance unless the changes are subject to preconstruction review under § 112(g) of the Act or preconstruction review programs approved into the SIP pursuant to part C or D of title I of the Act and the changes are not otherwise prohibited by the source's existing part 70 permit.
PCAPCD addressed this requirement by revising Section 302.6 of Rule 507 to limit the discretion of the APCO to authorize sources to commence operation of a significant permit modification prior to final action only where the changes meet the criteria of 40 CFR 70.5(a)(1)(ii).
(c) Placer County APCD needed to revise Section 302.7 of Rule 507 to restrict the use of minor permit modification procedures consistent with 40 CFR 70.7(e)(2)(i)(B). Rule 507, by default, allowed minor permit modification procedures to be used for those permit modifications that involve the use of economic incentives, marketable permits, emissions trading,
PCAPCD addressed this requirement by revising their definition of minor modification in Rule 507, Section 220, to include the constraining language from 40 CFR 70.7(e)(2)(i)(B) regarding minor permit modification procedures.
(d) The District was required to revise Rule 507's permit content requirements (Section 402) to provide that every permit contain a provision stating that no permit revision shall be required, under any approved economic incentives, marketable permits, emissions trading, and other similar programs or processes for changes that are provided for in the permit as required by 40 CFR 70.6(a)(8).
PCAPCD addressed this requirement by modifying Rule 507, Section 402.2(u) to add this provision from 40 CFR 70.6(a)(8).
(e) The District needed to revise all deadlines for final permit action in section 401.3 of Rule 507 (except for a. and e.) to be no later than the appropriate number of months after the complete application is received, rather than after the application is deemed complete, as required by 40 CFR 70.4(b)(11)(iii) and 70.7(a)(2).
PCAPCD addressed this requirement by changing the deadlines in Rule 507, Sections 401.3(b), (c), (d), and (f) to require final action no later than the appropriate number of months “after the complete application is received” rather than “after the application is deemed complete.”
(f) Placer County APCD needed to revise Section 401.9 of Rule 507 to require notification by the source of operational flexibility changes to both the EPA and the District as required by 40 CFR 70.4(b)(11)(iii).
PCAPCD addressed this requirement by modifying Sections 401.9(b) and (c) of Rule 507 to require sources to provide written notice to USEPA, in addition to the APCO, in advance of implementing the operational flexibility provisions of the District's Rule.
(20)
SCAPCD addressed this requirement by revising Rule 5, Section V.I.2.c to require this dual notification of operational flexibility changes, as required by part 70.
(b) SCAPCD was required to revise all deadlines for final permit action in Rule 5 IV.C. (except for C.1. and C.5.) to be no later than the appropriate number of months after the complete application is received, rather than after the application is deemed complete, as required by 40 CFR 70.4(b)(11)(iii) and 70.7(a)(2).
SCAPCD addressed this requirement by modifying Rule 5, Sections V.C(2), (C)(3), (C)(4), and (C)(6) to refer to the appropriate number of months “after the complete application is received.”
(c) SCAPCD needed to revise Rule 3:10 (Excess Emissions) to remove the prohibition on the use of reports required by Rule 3:10 in enforcement/permitting actions.
SCAPCD addressed this requirement by removing this prohibition from Rule 3:10.
(d) SCAPCD was required to revise paragraph (g) of Rule 3:10 to include a provision that EPA, as well as the APCO, can request a demonstration that the excess emissions are unavoidable. In addition, the rule needed to clarify that the APCO will specify in the permit the amount, time, duration, and under what circumstances excess emissions are allowed during start-up and shut-down.
SCAPCD addressed this requirement by revising paragraph (g) of Rule 3:10 to allow EPA to request a demonstration that excess emissions are unavoidable, and clarified in Rule 3:10 that the APCO will specify certain limits and restrictions regarding excess emissions during start-up and shut-down in the permit.
(21)
SCAPCD addressed this requirement by revising rule 2.13 to require final action no later than nine months “after the complete application is received” rather than “after the application is deemed complete.”
(b) SCAPCD needed to revise Rule 2.13 IV.B.4. to clarify that the APCO's approval of a minor permit modification prior to EPA's review is not a final permit action. Rule 2.13 IV.B.4. allowed the APCO to approve minor permit modifications changes prior to the EPA's review; however, 40 CFR 70.7(e)(2)(iv) precludes the District from issuing a final permit modification until after EPA's review period or until EPA has notified the District that EPA will not object, although the District may approve the permit modification prior to that time.
SCAPCD addressed this requirement by revising Rule 2.13 IV.B.4. to state the following: “allowing a stationary source to make a change prior to permit issuance does not constitute final action and does not preclude the District from denying the change or requiring the change to be processed as a significant permit modification, nor does it preclude the U.S. EPA from objecting to the permit modification.”
(c) SCAPCD was required to revise Rule 2.13 IV.B.4. to incorporate the compliance provisions of 40 CFR 70.7(e)(2)(v). Rule 2.13 IV.B.4 allowed the APCO to approve minor permit modifications prior to the EPA's review. While this is allowed under 40 CFR 70.7(e)(2)(v), Rule 2.13 did not state, as does § 70.7(e)(2)(v), that until the District takes final action to issue or deny the requested permit modification or determines that it is a significant modification, the source must comply with both the applicable requirements governing the change and the proposed permit terms and conditions, but the source need not comply with the existing permit terms and conditions being modified. Rule 2.13 also needed to be revised to state that if the source fails to comply with the permit terms and conditions in the requested modification, the existing permit terms and conditions being modified may be enforced against it.
SCAPCD addressed this condition by revising Rule 2.13 IV.B.4 to include the appropriate compliance provisions from 40 CFR 70.7(e)(2)(v).
(d) SCAPCD was required to revise Rule 2.13 IV.B.3. to limit the discretion of the APCO to authorize sources to commence operations of significant permit modifications prior to final permit action to when the changes meet the criteria of 40 CFR 70.5(a)(1)(ii). Rule 2.13 IV.B.3. allowed the APCO to approve significant permit modifications and the source to commence operations of those modifications prior to the EPA's review and final permit action. Part 70 prohibits sources from making significant permit modification changes prior to final permit issuance unless the changes are subject to preconstruction review under § 112(g) of the Act or preconstruction review programs approved into the SIP pursuant to part C or D of title I of the Act and the changes are not otherwise prohibited by
SCAPCD addressed this requirement by revising Rule 2.13 IV.B.3 to limit the discretion of the APCO to authorize sources to commence operations of a significant permit modification prior to final action only where the changes meet the criteria of 40 CFR 70.5(a)(1)(ii).
(e) SCAPCD was required to revise Rule 2.13 V.I.2 and V.I.3. to require notification by the source of operational flexibility changes to both the EPA and the District as required by 40 CFR 70.4(b)(11)(iii).
SCAPCD addressed this condition by revising Rule 2.13 V.I.2 and V.I.3 to require that EPA and the District be notified by the source in writing of all operational flexibility changes at least 30 days prior to the change.
(22)
TCAPCD addressed this condition by revising Rule 7:1 E.9.a.2.b. to require that USEPA and the District be notified by the source in writing of all operational flexibility changes at least 30 days prior to the change.
(b) TCAPCD was required to revise Rule 7:1 IV.B.4. to incorporate the compliance provisions of 40 CFR 70.7(e)(2)(v). Rule 7:1 did not state, as does § 70.7(e)(2)(v), that until the District takes final action to issue or deny the requested permit modification or determines that it is a significant modification, the source must comply with the applicable requirements governing the change and the proposed permit terms and conditions in lieu of complying with the existing permit terms and conditions being modified. Rule 7:1 also needed to be revised to state that if the source fails to comply with the permit terms and conditions in the requested modification, the existing permit terms and conditions may be enforced against it.
TCAPCD addressed this condition by revising Rule 7:1 D.2.d (note that the rule has been renumbered) to include the appropriate compliance provisions from § 70.7(e)(2)(v).
(c) TCAPCD was required to revise Rule 7:1 IV.B.3. to limit the discretion of the APCO to authorize sources to commence operation of significant permit modifications prior to final permit action to when the changes meet the criteria of 40 CFR 70.5(a)(1)(ii). Rule 7:1 IV.B.3. allowed the APCO to authorize sources to commence operation of significant permit modifications when the proposed permit revision is publicly noticed but prior to final permit action. Part 70 prohibits sources from making significant permit modification changes prior to final permit issuance unless the changes have undergone preconstruction review pursuant to § 112(g) or a program approved into the SIP pursuant to part C or D of title I, and the changes are not otherwise prohibited by the source's existing part 70 permit.
TCAPCD addressed this requirement by revising Rule 7:1 D.2.c to limit the discretion of the APCO to authorize sources to commence operations of a significant permit modification prior to final action only where the changes meet the criteria of 40 CFR 70.5(a)(1)(ii).
(23)
TCAPCD addressed this condition by revising Rule 500 to require final action no later than the appropriate number of months “after the complete application is received” rather than “after the application is deemed complete.”
(b) TCAPCD was required to revise the definition of “potential to emit” in Rule 500 II.Y. to clarify that only federally-enforceable limitations may be considered in determining a source's potential to emit under title V.
TCAPCD addressed this condition by revising this definition, which now states that “physical and operational limitations on the emissions unit shall be treated as part of its design, if the limitations are set forth in permit conditions or in rules or regulations that are legally and practicably enforceable by U.S. EPA and citizens or by the District.” For a discussion of how subsequent litigation has affected EPA's consideration of this issue, please refer to the Amador County portion of Section IV.A.2. of this
(24)
Yolo-Solano AQMD (YSAQMD) addressed this requirement by revising its definition of minor modification in Rule 3.8, Section 222, to include the constraining language from 40 CFR 70.7(e)(2)(i)(B) regarding minor permit modification procedures.
(b) The District needed to Revise Rule 3.8's permit content requirements to provide that every permit contain a provision stating that no permit revision shall be required, under any approved economic incentives, marketable permits, emissions trading, and other similar programs or processes for changes that are provided for in the permit as required by 40 CFR 70.6(a)(8).
YSAQMD addressed this requirement by modifying Rule 3.8 Section 302.22 to add this provision from § 70.6(a)(8).
In addition to the changes each district made to correct interim approval issues, most districts also made other changes to their rule (or program) that go beyond those necessary to receive full approval. This section describes, in general terms, the additional rule or program changes that districts have made. EPA proposes approval of most of the additional changes described below. For one rule change, made by several of the districts, EPA is taking no action. For a complete description of the rule changes and the basis for our decision to propose approval, or to take no action, please see the Technical Support Documents.
Most of the districts made at least one of four changes recommended by the California Air Resources Board in its January 18, 2001 table entitled, “Summary of Title V Interim Approval Issues.” Because these changes are common to many districts, we will discuss them here and refer back to the changes, where necessary, in the discussion of district-specific changes below. For three of the common changes, EPA is proposing approval, and for the fourth change, EPA is taking no action today. The three common changes that EPA is proposing to approve are:
(a)
(b)
(c)
The fourth common change that several districts made was a revision to the effective date of their rules. EPA is currently evaluating the approvability of the change to the effective date of the districts' operating permits rules. Because EPA has not yet determined whether this change is approvable under the requirements of 40 CFR part 70, and since this change was not required by EPA for any district to receive full program approval, the Agency is taking no action at this time.
The following changes beyond those necessary for full approval have been submitted to EPA since interim approval was granted. EPA proposes full approval of all the following changes, except for the effective date change, as noted above. Please refer to the TSD for details on the rule/program changes and the basis for our proposed approval or decision to take no action.
(1)
In addition to the changes noted above, EPA is proposing to approve revisions to sections I through VII Rule 500 adopted by ACAPCD on February 25, 1997. The purpose of the 1997 rule changes was to make Rule 500 consistent with EPA guidance on permit streamlining. See “White Paper Number 2 for Improved Implementation of The Part 70 Operating Permits Program”, March 5, 1996.
ACAPCD's definition of potential to emit in Section II.BB.2 of Rule 500 lists source categories that must count fugitives for the purposes of determining potential to emit. In the part of the definition that addresses stationary sources, subparagraph 3 has been modified to read: “any other stationary source category regulated under section 111 or 112 of the CAA, and for which the U.S. EPA has made an affirmative determination by rule under section 302(j) of the CAA.” (emphasis added) The addition of the 302(j) requirement restricts the types of sources that are required to count fugitives towards the major source threshold. This is inconsistent with the current version of part 70 and is not approvable.
EPA has, however, proposed to revise the major source definition to incorporate a 1980 cutoff date, consistent with EPA's New Source Review regulations. EPA final action would mean that Rule 500 would be consistent with part 70 with respect to which sources must count fugitives. We are therefore proposing to approve the District's definition of potential to emit provided that EPA finalizes revisions to the part 70 rule that will make the change approvable. Alternatively, if EPA does not finalize the changes to part 70 described above, a portion of ACAPCD's potential to emit definition will conflict with the operative version of the major source definition in part 70 and we will be unable to approve it.
The change that EPA will make to part 70 will make that rule consistent with EPA's New Source Review regulations in parts 51 and 52 with respect to the treatment of fugitives in major source determinations. The revised part 70 language will require that fugitives be counted for “Any other stationary source category which, as of August 7, 1980, is being regulated under section 111 or 112 of the Act.” This differs from the ACAPCD language cited above, which relies on 302(j) rulemaking instead of the 1980 cut-off date to determine which sources must count fugitives. However, at the present time, the 302(j) requirement in Rule 500 captures the same sources as the revised part 70 will, since EPA has not done any 302(j) rulemakings to expand the types of sources for which fugitive emissions are counted to determine title V applicability. If EPA does 302(j) rulemakings in the future, the Agency will have to revise part 70 to ensure that fugitives are counted for the new source category. The advantage of ACAPCD's language is that Rule 500 will not have to be revised if the universe of source categories for which fugitives are counted is expanded by EPA via 302(j) rulemakings.
In addition to the rule changes, ACAPCD's April 10, 2001 submittal of its amended title V program to EPA included one programmatic change. The District will use California Air Resource Board (CARB) model application forms instead of the forms initially approved by EPA for use in the District's title V program. EPA is also proposing to approve the use of these forms as part of ACAPCD's title V program. Copies of the forms are available in the docket for this rulemaking.
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
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KCAPCD's definition of potential to emit in Section II.X of Rule 201.1 lists source categories that must count fugitives for the purposes of determining potential to emit. In subparagraph 2, which addresses stationary sources, the definition has been modified to read: “any other stationary source category regulated under section 111 or 112 of the CAA, and for which the U.S. EPA has made an affirmative determination by rule under section 302(j) of the CAA.” (emphasis added) The addition of the 302(j) requirement restricts the types of sources that are required to count fugitives towards the major source threshold. This is inconsistent with the current version of part 70 and is not approvable.
EPA has, however, proposed to revise the major source definition to incorporate a 1980 cutoff date, consistent with EPA's New Source Review regulations. We are therefore proposing to approve the District's definition of potential to emit provided that EPA finalizes revisions to the part 70 rule that will make the change approvable. Alternatively, if EPA does not finalize the changes to part 70 described above, a portion of KCAPCD's potential to emit definition will conflict with the operative version of the major source definition in part 70 and we will be unable to approve it.
The change that EPA will make to part 70 will make that rule consistent with EPA's New Source Review regulations in parts 51 and 52 with respect to the treatment of fugitives in major source determinations. The revised part 70 language will require that fugitives be counted for “Any other stationary source category which, as of August 7, 1980, is being regulated under section 111 or 112 of the Act.” This differs from the KCAPCD language cited above, which relies on 302(j) rulemaking instead of the 1980 cut-off date to determine which sources must count fugitives. However, at the present time, the 302(j) requirement in Rule 201.1 captures the same sources as the revised part 70 will, since EPA has not done any 302(j) rulemakings to expand the types of sources for which fugitive emissions are counted to determine title V applicability. If EPA does 302(j) rulemakings in the future, the Agency will have to revise part 70 to ensure that fugitives are counted for the new source category. The advantage of KCAPCD's language is that Rule 201.1 will not have to be revised if the universe of source categories for which fugitives are counted is expanded by EPA via 302(j) rulemakings.
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
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All twenty-four districts have fulfilled the conditions of the interim approval granted on May 3, 1995, July 13, 1995, or December 7, 1995, and EPA proposes full approval of their title V operating permit programs.
As discussed above, many of the twenty-four districts that are the subject of today's proposed action also made additional changes to their operating permits programs. These changes were not required by EPA to address conditions of the interim approval granted to the twenty-four districts on May 3, 1995, July 13, 1995, or December 7, 1995. However, EPA has reviewed all changes and proposes to approve all of them except the change to the effective date many districts made.
EPA requests comments on the program revisions discussed in this proposed action. Copies of these submittals and other supporting documentation used in developing the proposed full approval are contained in docket files maintained at the EPA Region 9 office. The docket is an organized and complete file of all the information submitted to, or otherwise considered by, EPA in the development of this proposed full approval. The primary purposes of the docket are: (1) To allow interested parties a means to identify and locate documents so that they can effectively participate in the approval process, and (2) to serve as the record in case of judicial review. EPA will consider any comments received in writing by November 21, 2001.
Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Under the Regulatory Flexibility Act (5 U.S.C. 601
In reviewing State operating permit programs submitted pursuant to Title V of the Clean Air Act, EPA will approve State programs provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program, to use VCS in place of a State program that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Proposed rule.
The EPA proposes fully approving the Illinois Clean Air Act Permit Program (CAAPP), 415 ILCS 5/39.5, submitted by Illinois pursuant to subchapter V of the Clean Air Act, which requires states to develop and submit to EPA for approval, programs for issuing operating permits to all major stationary sources and to certain other sources.
EPA must receive comments on this proposed action on or before November 21, 2001.
Copies of the State's submittal and other supporting information used in developing the proposed approval are available for inspection during normal business hours at the following location: EPA Region 5, 77 West Jackson Boulevard, AR-18J, Chicago, Illinois, 60604. Please contact Steve Marquardt at (312) 353-3214 to arrange a time to inspect the submittal.
Steve Marquardt, AR-18J, 77 West Jackson Boulevard, Chicago, Illinois, 60604, Telephone Number: (312) 353-3214, E-Mail Address: marquardt.steve@epa.gov.
This section provides additional information by addressing the following questions:
As required under Subchapter V of the Clean Air Act (“the Act”) as amended (1990), EPA has promulgated regulations which define the minimum elements of an approvable state operating permits program and the corresponding standards and procedures by which the EPA will approve, oversee, or withdraw approval of the state programs (see 57 FR 32250 (July 21, 1992)). These regulations are codified at 40 Code of Federal Regulations (CFR) part 70. Pursuant to Subchapter V of the Act, generally known as Title V, and the implementing regulations, states developed and submitted to EPA programs for issuing operating permits to all major stationary sources and to certain other sources. Where a program substantially, but not fully, met the requirements of part 70, EPA granted the program interim approval. If EPA has not fully approved a state's operating permit program by the expiration of its interim approval period, EPA must establish and implement a federal program under 40 CFR part 71 in that state.
EPA promulgated final interim approval of the Illinois Title V program on March 7, 1995 (60 FR 12478), and the program became effective on that date.
Illinois submitted amendments to its Title V program for approval on May 31, 2001. Illinois intended the amendments to correct interim approval issues identified in the March 7, 1995 interim approval action.
In the March 7, 1995 action, EPA identified four interim approval issues. The following is a description of the issues and their subsequent resolution.
In the interim approval, the EPA discussed Illinois' regulations relating to insignificant emissions units (IEUs). 40 CFR 70.5(c) prohibits, in an application, omission of information needed to determine the applicability of, or to impose, any applicable requirements, or to evaluate the fee amount required under the schedule approved pursuant to 40 CFR 70.9. The EPA found that section 201.208 of the State's administrative code, 35 IAC 201.208, did not require information on IEUs necessary to meet the requirements of 40 CFR 70.5(c). In addition, the EPA stated that Illinois must amend 35 IAC 201.210(b) to clarify that a source must specifically list in its permit application the insignificant activities present at its facility rather than rely solely on a general statement that denotes the presence of IEUs.
EPA outlined in the final interim approval that, to obtain full approval, the State must (1) require in section 201.208 that applications include all necessary information on IEUs to determine the applicability of or to impose any applicable requirements or fees and (2) require in section 201.210(b) that sources specifically list the insignificant activities present at their facilities.
With regard to the first issue, Illinois clarified in its May 31, 2001 submittal that 415 ILCS 5/39.5(5)(c) requires applicants to submit “all information, as requested in Agency application forms, sufficient to evaluate the subject source and its application and to determine all applicable requirements, pursuant to the Clean Air Act, and regulations thereunder, this Act and regulations thereunder.” Section 39.5(5)(g) further provides that applicants must furnish additional information on the request of the permitting authority. Finally, section 39.5(5)(i) provides that applicants must submit supplementary information if the initial submittal was incomplete or incorrect.
To further clarify that applicants must include in their applications all information on IEUs necessary to determine applicability of and compliance with specific applicable requirements, Illinois will revise form 297-CAAPP to require information regarding specific applicable requirements which apply to IEUs, and compliance of the IEUs with those specific applicable requirements prior to receiving full approval.
EPA addressed IEU issues in a July 10, 1995 document, “White Paper for the Streamlined Development of Part 70 Permit Applications” (White Paper), a guidance document clarifying Part 70 permit application requirements. The White Paper provides that “requirements can normally be adequately addressed in the permit application with minimal or no reference to any specific emissions unit or activity, provided that the scope of the requirement and the manner of its enforcement are clear.” White Paper, Section II.B.4. However, when an IEU is subject to a specific applicable requirement, the applicant must list that IEU individually, along with the specific applicable requirements and associated monitoring requirements.
In light of these clarifications and Illinois' proper implementation of this requirement, we have determined that the Illinois rules and administrative code provide a sufficient basis to require that permit applicants submit all necessary information required by 40 CFR 70.5(c).
We also have determined that Illinois need not require sources to include in their applications specific information on IEUs for purposes of fee calculation. Illinois Administrative Code section 270.603(b) states that, “the amount of the fee shall be based on the allowable emissions information submitted by the applicant in the fee calculation portion of its CAAPP application, not including emissions of insignificant levels or from insignificant activities, pursuant to 35 Ill. Adm. Code 201.”
In the second IEU issue identified in the final interim approval notice, EPA stated that Illinois must require applicants to list specifically in their permit applications insignificant units present at their facilities. However, as noted above, since granting interim approval EPA has issued guidance which clarifies that 40 CFR 70.5(c) provides permitting authorities with the flexibility to tailor the level of information on IEU's required in an application, as long as the applications include sufficient information to meet the goals of 40 CFR 70.5(c). In particular, EPA stated that permitting authorities could allow sources “merely to list in the application the kinds of insignificant activities that are present at the source or check them off from a list of insignificant activities approved in the program.” White Paper, section II.B.3. EPA also stated in “White Paper Number 2 for Improved Implementation of the Part 70 Operating Permits Program,” issued March 5, 1996 (White Paper #2), that permitting authorities may allow applicants to group generically information on IEU's and to list IEU groups without emissions estimates, unless emission estimates are needed for another purpose such as determining the amount of permit fees that are calculated using total source emissions. White Paper #2, section II.C.2. This approach allows applicants to incorporate into their applications standard permit conditions with minimal or no reference to any specific emission unit or activity, provided that the scope of the requirement and associated monitoring requirements are
EPA believes that the clarifications made by Illinois and the White Paper and White Paper #2 are sufficient to address this IEU interim approval issue.
In the final interim approval, EPA stated that the State must amend 415 ILCS 5/39.5(13)(c)(vi) to require the use of the significant modification procedure to incorporate emission trades into a CAAPP permit.
Illinois deleted this provision from its operating permit program in House Bill 3373 that became effective on July 1, 2001. Illinois' action corrects this interim approval issue because the permitting authority is now required to determine the appropriate modification mechanism consistent with Illinois' permit modification procedures and 40 CFR 70.7.
In the March 7, 1995 interim approval notice, EPA noted that 415 ILCS 5/39.5(13)(c)(v) allowed incorporation of requirements from preconstruction permits authorized under a federally approved preconstruction permit program into a Title V permit through the administrative amendment process provided for under the enhanced New Source Review provision of 40 CFR 70.7(d)(1)(v). EPA commented that, to use this provision, the State must develop and have approved into its CAAPP program regulations which are substantially equivalent to the procedural and compliance requirements of 40 CFR 70.7 and 70.8 that would be applicable to the change if it were subject to review as a permit modification, and compliance requirements substantially equivalent to those contained in 40 CFR 70.6. EPA expressed concern that, without these regulations, the public and EPA cannot track the issuance and amendments of part 70 permits to ensure that the permits contain all requirements. The public also needs assurance that a source will not be able to avoid the requirements of the part 70 process through a different permitting program such as preconstruction review.
EPA has determined that the existence of this provision in the Illinois CAAPP program without regulations defining procedures substantially equivalent to 40 CFR 70.6, 70.7 and 70.8 does not make the program deficient. Illinois has not developed any regulations to address this issue. Without the required procedures, the provision is not usable. If the State ever intends to use this enhanced NSR provision, it must (1) develop regulations outlining the exact substantive, procedural and compliance requirements for incorporation of preconstruction permits into part 70 permits, and (2) submit these regulations to EPA for review and approval into the CAAPP program. Until Illinois adopts the necessary “substantially equivalent” requirements, the State cannot use the enhanced NSR provision. To assure that this provision is unused, the Illinois EPA will amend the State's administrative amendment application form, 273-CAAPP, to delete the category that enables a source to take advantage of incorporation of a construction permit through administrative amendment procedures. Also, the Illinois EPA will submit a letter to the EPA describing that the Illinois EPA will not use this option until the proper procedures are in place. Illinois must make the form changes and submit the letter prior to receiving full approval.
The final interim approval notice stated that for an eventual full approval of the State's CAAPP, the State must incorporate by reference the federal acid rain program into the State's its existing CAAPP program. Illinois developed Senate Bill 0819, which became effective on August 10, 1997, in part to provide that Subchapter IV-A of the Federal Clean Air Act and regulations promulgated under the Act, concerning sources of acid rain deposition, are enforceable under the Illinois Environmental Protection Act. 415 ILCS 5/39.5(17)(a) now states that, “Title IV of the Clean Air Act and regulations promulgated thereunder, including but not limited to 40 CFR Part 72, as now or hereafter amended, are applicable to and enforceable under this Act.” This legislative change corrects this issue.
As discussed in detail below, EPA will address any uncorrected deficiencies in a notice of deficiency which EPA will publish by December 1, 2001.
The EPA proposes full approval of the operating permits program submitted by Illinois based on the revisions submitted on May 31, 2001. EPA finds that Illinois has satisfactorily addressed the program deficiencies identified in EPA's March 7, 1995 interim approval rulemaking.
On May 22, 2000, EPA promulgated a rulemaking that extended the interim approval period of 86 operating permits programs until December 1, 2001. (65 FR 32035) The action was subsequently challenged by the Sierra Club and the New York Public Interest Research Group (NYPIRG). In settling the litigation, EPA agreed to publish a notice in the
Citizens commented on what they believe to be deficiencies with respect to the Illinois Title V program. EPA takes no action on those comments in today's action and will respond to them by December 1, 2001. As stated in the
Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Under the Regulatory Flexibility Act (5 U.S.C. 601,
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTA), 15 U.S.C. 272 note, requires federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impracticable. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP submission for failure to such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a SIP submission that otherwise satisfies the provisions of the Act. Therefore, the requirements of section 12(d) of the NTTA do not apply.
As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order, and has determined that the rule's requirements do not constitute a taking. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.
42 U.S.C. 7401-7671q.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Advance notice of proposed rulemaking (ANPRM); request for comments.
The FMCSA requests comments on whether to extend the applicability of the Federal Motor Carrier Safety Regulations (FMCSRs) to all interstate school transportation operations (thus excluding home-to-school or school-to-home transportation) by local governmentally-operated educational agencies. This action responds to section 4024 of the Transportation Equity Act for the 21st Century (TEA-21) which directs the FMCSA to determine whether the FMSCRs should apply to these operations. The FMCSA requests comments, data, and information to assist the agency in making the determination.
Comments must be received on or before January 22, 2002.
You can mail, fax, hand deliver, or electronically submit written comments to the Docket Management Facility, U.S. Department of Transportation, Document Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. The fax number is (202) 493-2251. You can comment to the Web site (
Mr. Philip J. Hanley, Jr., Office of Bus and Truck Standards and Operations, (202) 366-6811, Federal Motor Carrier Safety Administration, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.
The ANPRM responds to section 4024 of the TEA-21 (Pub. L. 105-128, 112 Stat. 107, at 416), which directs FMCSA to initiate a rulemaking proceeding on whether or not the FMSCRs should apply to all interstate school transportation operations by local
(A) The term “local educational agency” means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or for such combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools.
(B) The term includes any other public institution or agency having administrative control and direction of a public elementary or secondary school.
(C) The term includes an elementary or secondary school funded by the Bureau of Indian Affairs but only to the extent that such inclusion makes such school eligible for programs for which specific eligibility is not provided to such school in another provision of law and such school does not have a student population that is smaller than the student population of the local educational agency receiving assistance under this chapter with the smallest student population, except that such school shall not be subject to the jurisdiction of any State educational agency other than the Bureau of Indian Affairs.
The FMCSA must determine whether Federal regulatory involvement in interstate school bus transportation operations by local educational agencies is necessary to enhance the safety of those passengers and that of the general public. The FMCSA is also considering whether the interstate transportation (other than home to school and school to home) by all governmental educational entities such as public universities should be subject to the FMCSRs.
At present, there are two exceptions in the FMCSRs relating to school bus operations. The first (49 CFR 390.3(f)(1)) exempts all school bus operations, whether by a for-hire carrier of passengers operating under a contract with the educational agency or local educational agencies, that transport only school children and/or school personnel from home to school and from school to home. This exception originated from section 206(f) of the Motor Carrier Safety Act of 1984 (MCSA) (Pub. L. 98-554, 98 Stat. 2832) formerly codified at 49 U.S.C. 31136(e)(1) which specifically directed the Secretary of Transportation (Secretary) to waive application of the regulations issued under section 206 with respect to school buses, unless the Secretary determined that making such regulations applicable to school buses was necessary for public safety taking into account all Federal and State laws applicable to school buses. This statutory language was subsequently repealed by section 4007(c) of the Transportation Equity Act for the 21st Century (TEA-21) in 1998. However, section 4007(d) provided that amendments made by 4007 shall not apply to or otherwise affect a waiver, exemption, or pilot program in effect on the date of enactment of TEA-21. In 1988, the agency indicated that the transportation of school children and school personnel from home to school and back again involved problems which are common to the States, and which, in accordance with the then-current Executive Order on Federalism (Executive Order 12612), could best be left to the individual States (see 53 FR 18043, May 19, 1988).
The second exception is contained in 49 CFR 390.3(f)(2), which makes transportation by a government entity exempt from the FMCSRs. This exemption also originated from section 206 of the MCSA, which specifically authorized the Secretary to waive application of the regulations to any person or class of persons if the Secretary determines that such waiver is not contrary to the public interest and is consistent with the safe operation of CMVs. Although safety on the public highways is an area that must not be compromised, the FMCSA has historically exempted some segments of transportation. Transportation by government entities has been one such segment.
Currently, some pupil transportation for school-related purposes (e.g., field trips) may be subject to the FMCSRs. One example is where a private school or contractor transports passengers in a commercial motor vehicle (CMV) across a state line outside the scope of home to school and school to home. These operations are subject to the applicable provisions of 49 CFR parts 350-399 of the FMCSRs.
At the present time, most school bus drivers, including those employed by private schools, contractors, and educational agencies, are subject to the commercial driver's license requirements in 49 CFR part 383 and the drug and alcohol requirements in 49 CFR part 382 because most medium to large school buses meet the regulatory definition of a CMV (i.e. designed to transport 16 or more passengers, including the driver). School bus drivers are required to hold a commercial driver's license, and their employers are required to have a controlled substances and alcohol testing program for the drivers.
Under this ANPRM, the FMCSA is considering holding the educational agencies to the same standards that the private schools and contractors are required to meet when operating in interstate commerce in other than home to school and school to home-type operations. Examples of these standards include qualifications of drivers, hours of service, and maintenance of vehicles.
The primary goal of the FMCSRs is to promote the safe operation of CMVs. The goal of the FMCSA's Passenger Carrier Safety Program is to reduce bus crashes and thereby decrease fatalities, bodily injuries and property losses. School bus operations are distinguished from other types of passenger transportation operations because of their highly specialized type of service. For the most part, the operation of a school bus entails the transportation of school children and/or school personnel from home to school and school to home. This type of transportation generally involves the regularly scheduled operation of school buses into and through residential, rural, and business areas, which collectively encompass a relatively small geographic area within the confines of a single State. The routes are, in most circumstances, predetermined and of a “stop and go” nature during specific morning and afternoon hours. The other users of the highways have generally come to expect and accept the “stop and go” operations of school buses during those specific hours of operation.
When transporting children, school personnel and (sometimes) parents on other kinds of trips, school buses often travel the same highways “ many of them high-speed arteries “ that are used by large CMVs. The speeds that are maintained are considerably greater than those attained in “stop and go” pickup or drop-off operations. The actual time spent driving is generally greater, as is the possibility of fatigue.
The FMCSA is aware that some local jurisdictions and/or school systems have imposed specific requirements on drivers who transport school children. The FMCSA believes that most States have established programs to review the qualifications of school bus operators and the maintenance of school bus vehicles involved in home-to-school and school-to-home movements. The FMCSA is interested in obtaining information about the present extent of safety oversight of school bus operations by local educational agencies. The FMCSA requests States, counties, and localities to submit information about their safety standards and oversight programs to the docket. The FMCSA is primarily interested in the safety standards concerning driver qualification, vehicular parts and
The FMCSA has reviewed the current data from the National Highway Traffic Safety Administration's Fatal Analysis Reporting System (FARS) and General Estimates System (GES) for 1998 and 1999. The data is located in the docket for this ANPRM. The FARS shows there were 111 school buses involved in a fatal crash in calendar year 1998. There were 303 school bus occupants on these 111 school buses and 4 of these occupants were killed . The FARS shows there were 138 school buses involved in a fatal crash in calendar year 1999. There were 469 school bus occupants on these 138 school buses and 8 of these occupants were killed. As the name implies, the GES contains only estimates for the number of injuries resulting from school bus crashes. The GES indicates 15,000 estimated injuries resulting from school bus crashes in 1999. The FARS and the GES do not provide a means to separate crash statistics for interstate school bus transportation or for school buses operated by local educational agencies. The FMCSA strongly encourages the submission of crash data and information involving interstate school bus transportation by local educational agencies to the docket.
The purpose of this ANPRM is to gather information, data, and recommendations from a broad spectrum of commenters to assist the FMCSA in evaluating the potential safety benefits and the potential costs of making the FMCSRs applicable to interstate school bus transportation by local educational agencies. The FMCSA requests views and supporting information about whether only certain, but not all, parts of the FMCSRs should apply to interstate school bus transportation by local educational agencies. For example, a commenter might assert that the hours-of-service limitations contained in 49 CFR part 395 should apply to the interstate school bus drivers of local educational agencies, but that the driving rules in 49 CFR part 392 should not because adequate local traffic safety laws already exist. The FMCSA requests all commenters to support their positions with data and factual information.
Commenters may include in their comments to the docket discussions of any other issues that they believe are relevant to this rulemaking. In addition, the FMCSA encourages all interested parties to respond to the specific questions posed below:
1. How many local educational agencies that operate school buses would be impacted if the FMCSRs applied to their interstate school bus transportation (but not home-to-school or school-to-home) operations, e.g., interstate class trips? How many school buses and drivers working for local educational agencies are involved in the interstate transportation? (These questions assume that the public school students are not bused across State lines in the course of home-to-school or school-to-home transportation. It is possible, however, that school districts in rural areas of adjacent States may have reciprocal agreements to accept each other's students where the closest in-State school is much farther away than a school just across the State line. If so, we would like to know where this occurs and how many students, drivers and buses are involved.)
2. What requirements of the FMCSRs are not addressed by State or local school bus safety standards? For example, to what extent do local educational agencies require their interstate school bus drivers to undergo periodic physical examinations? Is there a systematic inspection, repair and maintenance program in place for school buses?
3. Are there limits to the number of hours that a driver may operate a school bus during school-related activities (e.g., field trips, etc.)? Are there any limitations on on-duty time by local educational agencies?
4. What would be the incremental cost (if any) for local educational agencies of complying with the FMCSRs for interstate trips, over and above the safety program and regulatory compliance costs that are already expended? Keep in mind that the FMCSRs include driver qualifications, medical qualifications, hours-of-service limits, and vehicle requirements (including inspection, repair, and maintenance provisions). Please describe the nature and extent of the impact upon operations and procedures.
5. What are the potential safety benefits of applying all or selected FMCSRs to interstate school bus transportation by educational agencies? Please provide data and information to support your position.
6. Should the FMCSA require that States receiving Motor Carrier Safety Assistance Program (MCSAP) funds adopt State laws and regulations that are compatible with the FMCSRs for intrastate school bus transportation by educational agencies?
7. If the States adopt safety standards that are equivalent to the FMCSRs for interstate school bus transportation by local educational agencies, how would they enforce them? Would more personnel be required? Please provide cost estimates if available.
8. Should the FMCSRs be applied uniformly for all providers of transportation whether they are local educational agencies, private schools, or contractors?
9. Should the FMCSRs be made applicable to all educational institutions beyond the secondary level that transport students to after-school type activities?
10. Should the FMCSA apply the FMCSRs to all interstate transportation of school children, even school-to-home and home-to-school? (see Question 1)
We will consider all comments received before the close of business on the comment closing due date indicated above. We will file comments received after the comment closing date in the docket and will consider them to the extent possible.
This ANPRM 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. 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).
Due to the preliminary nature of this document and the lack of necessary information on costs, the FMCSA is unable at this time to evaluate the effects of the potential regulatory changes on small entities. Based on the information received in response to the ANPRM, the FMCSA intends, in compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612) to carefully consider the economic impact of these potential changes on small entities. The FMCSA solicits comments, information, and data on these potential impacts.
The FMCSA will analyze any proposed rule to determine whether it would result in the expenditure by
This publication is not a covered regulatory action under Executive Order 13045 because it would not affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety of State, local, or tribal governments or communities.
This publication will not affect the taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This action will be analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, to determine if this action has federalism implications. Nothing in this document directly preempts any State law or regulation.
The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program. Catalog of Federal Domestic Assistance Program Number 20.217, Motor Carrier Safety.
This action, if taken beyond the ANPRM stage, could have an impact on existing collection of information requirements for the purposes of the Paperwork Reduction Act of 1995 (49 U.S.C. 3501-3520). Office of Management and Budget (OMB) reviews and approvals would be required if regulatory changes were proposed and promulgated.
The FMCSA is a new administration within the Department of Transportation (DOT). We are striving to meet all of the statutory and executive branch requirements on rulemaking. The FMCSA is currently developing an agency order that will comply with all statutory and regulatory policies under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
On November 6, 2000, the President issued Executive Order 13175 (65 FR 67249) entitled, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 took effect on January 6, 2001, and revoked Executive Order 13084 (Tribal Consultation) as of that date. E.O. 13175 requires the DOT to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” At this time, we are only soliciting data to develop a rulemaking. Due to the preliminary nature of this document and the lack of necessary information, the FMCSA is unable to evaluate the effects of the potential regulatory changes on Indian Tribal Governments.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Request for comments.
This notice is a request for comments to assist NHTSA in upgrading the requirements of Federal Motor Vehicle Safety Standard No. 216, “
Comments on this notice must be received no later than December 6, 2001.
You may submit your comments in writing to: Docket Management, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590. Alternatively, you may submit your comments electronically by logging onto the Docket Management System (DMS) website at http://dms.dot.gov. Click on “Help & Information” or “Help/Info” to view instructions for filing your comments electronically. Regardless of how you submit your comments, you should mention the docket number of this document.
The following persons at the National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC, 20590:
You may read the materials placed in the docket for this notice (e.g., the comments submitted in response to this notice by other interested persons) by going to the DMS at the street address given above under
You may also read the materials on the Internet. To do so, take the following steps:
(1) Go to the Web page of the Department of Transportation DMS (http://dms.dot.gov/).
(2) On that page, click on “search” near the top of the page or scroll down to the words “Search the DMS Web” and click on them.
(3) On the next page (http://dms.dot.gov/search/), scroll down to “Docket Number” and type in the four-digit docket number shown in the title at the beginning of this notice. After typing the docket number, click on “search.”
(4) On the next page (“Docket Summary Information”), which contains docket summary information for the materials in the docket you selected, scroll down to “search results” and click on the desired materials. You may download the materials.
In the early 1970's, the National Highway Traffic Safety Administration (NHTSA) was responsible for the United States becoming the first country in the world to address deaths and serious injures associated with vehicle roof crush. Federal Motor Vehicle Safety Standard (FMVSS) No. 216, “Roof Crush Resistance,” became effective on September 1, 1973. This standard established strength requirements for the roof structure over the front occupants of passenger cars with a gross vehicle weight rating (GVWR) of 6,000 pounds or less. The purpose of the standard is to reduce deaths and injuries due to crushing of the roof into the passenger compartment area in rollover crashes. Since 1973, Canada and Saudi Arabia have adopted roof crush standards that have the same requirements as Standard No. 216. We are not aware that any other country has adopted a roof crush standard, and know that both Europe and Japan do not have any such requirements.
Since inception, the roof crush standard has been amended, extending its requirements to passenger cars, trucks, buses, and multipurpose passenger vehicles with a GVWR of 2722 kilograms (6,000 pounds) or less (55 FR 15510, April 17, 1991). The standard was also amended to modify the test device placement procedure to accommodate vehicles with raised and highly sloped (aerodynamic) roof structures (64 FR 22567, April 27, 1999).
The test procedure currently used to evaluate compliance with the standard involves securing a vehicle on a rigid horizontal surface, placing a flat steel rectangular plate on the vehicle's roof, and using the plate to apply 1.5 times the unloaded weight of the vehicle (up to a maximum of 22,240 N, or 5,000 pounds, for passenger cars) onto the roof structure. During the test, the plate is angled and positioned to simulate vehicle-to-ground contact on the roof over the front seat area.
Roof intrusion and roof contact injury are common factors in rollovers. Based upon crash data in NHTSA's National Automotive Sampling System (NASS) for 1995-1999, rollover crashes are the most dangerous collision type for light duty vehicles, measured by the ratios of fatal and serious injuries to the number of occupants involved in towaway crashes. Table 1 shows the ratios and the number of fatalities and serious injuries in light duty vehicle towaway crashes by crash type.
From NASS, it is estimated that an annual average of 253,000 light vehicle rollovers resulted in towaway crashes. Eighty-one percent (205,000) of these rollovers are in single-vehicle crashes, and 87 percent (178,000) occurred after the vehicle left the roadway. According to the 1999 Fatality Analysis Reporting System (FARS), 10,149 people were killed in light vehicle rollovers. This includes 8,345 occupants who were killed in single-vehicle rollovers. Eighty percent of these people were unrestrained and 64 percent were ejected (including 53 percent who were completely ejected). FARS shows that 55 percent of light vehicle occupant fatalities in single-vehicle crashes involved rollover. The proportion differs greatly by vehicle type: 46 percent of passenger car occupant fatalities in single-vehicle crashes involved rollover, compared to 63 percent for pickup trucks, 60 percent for vans, and 78 percent for multipurpose passenger vehicles. The higher proportion for pickup, vans, and sports utility vehicles may be attributed to their higher center of gravity compared to passenger cars.
The FARS and NASS data were further analyzed to determine the various causes and distribution of rollover injury. NASS data from 1988-1999 were used in the analysis, and thus provide slightly different estimates of
A study by Partyka
Observing only drivers in rollover crashes with vertical roof intrusion, the study concluded that 15 percent of drivers are injured by roof intrusion. It was also found that the roof itself was the most frequently reported source of roof injury and the head was the body part most frequently injured by these contacts. Further, 89 percent of roof-injured drivers received their most serious injuries from the roof.
According to NASS, roof contact and the severity of rollover injury is greatly influenced by belt usage. Eighty-nine percent of unbelted ejected occupants receive their most severe injury from ejection (based on NASS annual averages from 1988-1997). Consequently, preventing ejection is the most important means for reducing injury to unbelted occupants. Roof crush intrusion is an additional injury source for unbelted occupants, although generally only a minor contributor. Roof intrusion is present in the majority of cases, but is only the leading cause of injury in less than 10 percent of unbelted rollover cases.
Partyka's study found that eliminating injuries caused by roof intrusion might not reduce overall injury severity of non-ejected unbelted occupants. It showed that severe injuries received by unbelted rollover occupants are more frequently caused by ejection or vehicle interior components rather than from the roof structure. Thus, unbelted occupants will gain little, if any, safety benefit from changes to the roof crush standard. By contrast, belted rollover occupants usually receive their most severe injury by contacting the roof structure.
The methods for preventing roof contact, by limiting the occupant's movement or by limiting roof intrusion (through improved roof strength or roof reinforcements), and the predicted benefits (lives saved and injuries prevented), have been debated for many years. There are a number of possible factors that influence the type of outcomes and the severity of injury for belted occupants in rollover crashes. These factors include the occupant's initial position and motion while in the rollover event, seatbelt tension or/slack, the deformation and velocity of intruding vehicle components (i.e., the roof, side rails and A/B-pillars), and severity of the crash. Additionally, most crash databases, including the NASS Crashworthiness Database System (CDS), do not provide sufficient information to separate and identify the contribution of each of these and other factors. For example, most crash databases only record whether seat belts are worn, not whether they were worn properly. In addition, belt slack and any subsequent vertical excursion of the occupant cannot be determined. Of particular interest is the timing of occupant to roof contact and any roof intrusion that may occur. Crash investigations cannot distinguish between occupant travel off the seat towards the roof, and head to roof contact from roof intrusion.
In summary, unbelted occupants in rollover crashes are primarily injured by ejection from the vehicle, which is fatal in about half the cases. Belted occupants in rollover crashes are primarily injured by roof contact and by contacts with other components within the vehicle's interior. Roof contact for belted occupants in rollover crashes is usually non-fatal, but the severity of the injury is only directly related to the level of roof intrusion in severe cases of intrusion. In less severe cases, the severity of injury is related to other vehicle and occupant factors. A discussion of the relationship between these factors and injury severity is presented in the following section.
In November 1989, NHSTA published an Evaluation Report concerning FMVSS No. 206, Door Locks and Door Retention Components (49 CFR 571.206) and FMVSS No. 216.
The objectives of the evaluation were to determine if there were actual benefits (lives saved, injuries prevented, damage avoided and costs of safety equipment installed in production vehicles) in connection with FMVSS Nos. 206 and 216 for passenger car occupants. More specifically, the evaluation examined these standards in the context of the overall trend in fatality risk of unbelted occupants of passenger cars of model years 1963-82 in rollover crashes. However, because FMVSS Nos. 206 and 216 were not the only vehicle factors which affected fatality risk in rollover crashes during the 1963-82 periods, a major task of the evaluation was to study the overall fatality trend and identify what changes were due to improved door locks and roof crush strength, as opposed to other vehicle factors.
Based on examinations of rollover trends as well as more detailed analyses of vehicle changes in the fleet, the principal rollover findings and conclusions of the analysis were as follows:
(1) By influencing changes during the 1970's in vehicle design (true hardtops were restyled as pillared hardtops or sedans), the implementation of the standard saved an estimated 110 lives per year for vehicles manufactured from 1963-1982.
(2) True hardtops have approximately 15 percent higher risk of a non-ejection fatality in a rollover crash than pillared cars of the same size and exposure pattern.
(3) Narrower, lighter, shorter cars have higher rollover rates than wide, heavy, long ones under the same crash conditions. During 1970-82, as the market shifted from large domestic cars to downsized, subcompact or imported cars, the fleet became more rollover prone. That may have been partly offset by increases in the track width of some imported cars after 1977. The net effect of all car changes since 1970 is an increase of approximately 1340 rollover fatalities per year.
(4) The fatality or injury rate per 100 rollover crashes is not a valid measure of crashworthiness in comparisons of cars of different sizes. Cars that tend to roll over easily (small, narrow cars) do so in crashes of intrinsically low severity. These rollovers have low injury rates. Larger cars would not roll over at all in those circumstances. When
The Kahane study has not been updated to examine the post-1982 fleet, particularly as it has shifted to a greater percentage of light trucks, vans, and sport utility vehicles. Consequently, the effectiveness of the changes made to FMVSS No. 216 in 1991, extending the requirements to pickup trucks and multipurpose passenger vehicles with a GVWR of 6,000 pounds or less, has not been assessed.
Various researchers
However, these findings became confounded by other limitations existing within the data investigations. In particular, researchers acknowledged that both the severity of the roof crush and the severity of injury were possibly related to the severity of the crash. Partyka
Second, occupant contacts with vehicle interior components are reported only if they cause injury. Therefore, it is not possible to estimate how often occupants contact intruding surfaces without injury when estimating injury rates for these contacts or comparing them to rates for non-intruding surfaces. On the other hand, occupant contact with interior vehicle components can produce injury even when there is no intrusion, and preventing roof intrusion may not always prevent injury from contact. Thus, it is important to determine if roof crush and injury are both associated with impact severity.
In an attempt to determine the relationship between limiting roof intrusion, by rollcaged/reinforced roofs, and injury severity measured using unbelted Hybrid III anthropomorphic test dummies, Orlowski, et al.,
In 1990, Orlowski, et al.,
On April 17, 1991, NHTSA published a final rule amending FMVSS No. 216 to extend its requirements to multipurpose passenger vehicles, trucks, and buses with a gross vehicle weight rating (GVWR) of 6,000 pounds or less (56 FR 15510). NHTSA explained that we were extending FMVSS No. 216 to light trucks because of the increased use of light trucks as passenger vehicles and the need to ensure that those vehicles offer safety protection comparable to that offered passenger car occupants. This final rule adopted the same test requirement and procedure as those for passenger cars, except there is
In 1991, Congress mandated NHTSA to assess rulemaking on rollover occupant protection as a part of the Intermodal Surface Transportation Efficiency Act (ISTEA). ISTEA required NHTSA to initiate rulemaking to address the problems of rollover crashes. In response to that mandate, NHTSA published an advance notice of proposed rulemaking (ANPRM) (57 FR 242, January 3, 1991) that summarized the statistics and research in rollover crashes, sought answers to several questions about vehicle stability and rollover crashes, and outlined possible regulatory and other approaches to reduce rollover casualties. NHTSA also published a report to Congress
During the development of the ANPRM and after receiving and analyzing comments to the ANPRM, it became apparent that no single type of rulemaking could solve all, or even a majority of, the problems associated with rollover. This view was strengthened by the agency's review and analysis of comments on the ANPRM. To emphasize this conclusion and inform the public further about the complicated nature of the light duty vehicle rollover problem, the agency released a document titled, “Planning Document for Rollover Prevention and Injury Mitigation,” at a Society of Automotive Engineers (SAE) meeting on rollover on September 23, 1992. The Planning Document gave an overview of the rollover problem and a list of alternative actions that NHTSA was examining to address the problem. Activities described in the document were: crash avoidance research on vehicle measures for rollover resistance, research on antilock brake effectiveness, rulemaking on upper interior padding to prevent head injury, research into improved roof crush resistance to prevent head and spinal injury, research on improved side window glazing and door latches to prevent occupant ejection, and consumer information to alert people to the severity of rollover crashes and the benefits of safety seat belt use in this type of crash. NHTSA published a notice announcing the availability of the Planning Document and requesting comments (57 FR 44721, September 29, 1992).
In May 1996, NHTSA issued the “Status Report for Rollover Prevention and Injury Mitigation” (NHTSA 1996-1811-2). This document updated the progress of the programs discussed in the Planning Document.
On May 6, 1996, the agency received a petition for rulemaking from R. Ben Hogan, Smith and Alspaugh, PC, a law firm. Hogan commented that the current static requirements in FMVSS No. 216 bear no relationship to real world rollover crash conditions and therefore should be replaced with a more realistic test such as the inverted vehicle drop test defined in the Society of Automotive Engineers (SAE) Standard J996. This request coincided with agency research testing that was being conducted using the inverted drop test procedure. The petitioner also requested that NHTSA require “roll cages” to be standard in all cars as requested by some commenters responding to the January 3, 1992, ANPRM on rollover occupant protection. NHTSA granted this petition on January 8, 1997, because we believed that the inverted drop testing had merit for further agency consideration.
On April 27, 1999, NHTSA published a final rule relating to the test procedure in FMVSS No. 216 (64 FR 22567). Prior to the amendments made by the final rule, the existing procedure resulted in certain vehicles with rounded roofs (e.g., the Ford Taurus) being tested with the test plate positioned too far rearward on the vehicle roof. In this position, the plate did not test the roof over the front occupants. In addition, this position created the potential for contact between the front edge of the test plate and the roof, allowing the plate to penetrate the roof along the leading edge of the plate. Similarly, in following this procedure for vehicles with raised, irregularly-shaped roofs (such as some vans with roof conversions), the initial contact point on the roof may not be above the front occupants, but on the raised rear portion of the roof, behind those occupants. In both of these cases, the positioning of the plate relative to the initial contact point on the roof, instead of relative to a fixed location on the roof, resulted in too much variability in the plate positioning and reduced test repeatability.
This final rule addressed the problem of rounded roofs by specifying a new primary test procedure for all vehicles except those with certain modified roof configurations. Under the new procedure, the test plate is to be positioned so that the front edge of the plate is 254 mm (10 inches) in front of the forwardmost point of the roof. Positioned in this way, the front edge of the plate will always project slightly forward of the roof instead of contacting it. The rule addressed the problem for vehicles with raised or modified roofs by specifying that if following the primary test procedure results in an initial point of contact that is rearward of the front seats, a second procedure would be used to position and orient the plate as specified for the primary procedure, except that the plate is moved forward such that its rearward edge is positioned at the rear of the roof over the front seat area.
Until October 25, 2000, vehicle manufacturers also had the option of using the standard's original test plate placement procedure (as established in 1973) for multipurpose vehicles, trucks and buses that have a raised or altered roof, instead of the primary or secondary procedures defined above (65 FR 4579, January 31, 2000). The original procedure positioned the plate with respect to its initial point of contact with the roof. The initial point of contact was established by angling the plate as required for the first procedure and then lowering it horizontally until it contacted the roof. After establishing the initial contact point on the vehicle, the test plate was moved upwards, and positioned as specified in the first procedure, except the plate's forward edge was positioned 254 mm forward of the initial point of contact with the vehicle. This position was allowed to make testing possible for raised roof vehicles that experience contact with the plate's rearward edge when testing to the second procedure.
NHTSA has undertaken a comprehensive research program to find ways to protect occupants better in rollover crashes. The roof crush research has taken the form of both vehicle testing and analytical research.
NHTSA has conducted an extensive vehicle-testing program to evaluate rollover crashes. The research has consisted of: (1) full vehicle dynamic rollover testing (as defined in FMVSS No. 208, “Frontal Occupant Protection”); (2) computer modeling; (3) inverted vehicle drop test (as defined in the SAE Recommended Practice J996); and (4) modified FMVSS No. 216 testing with comparisons to inverted drop testing. The following paragraphs summarize the findings of these activities.
A series of full-scale dynamic rollover tests has been conducted by NHTSA to evaluate a range of crash situations, injury mechanisms, and safety countermeasures. NHTSA designed a rollover test cart that was similar to the FMVSS 208 dolly rollover cart, but was elevated four feet vertically and the vehicle's angular momentum could be initiated using pneumatic cylinders. These tests were designed to produce severe roof intrusion, and to study occupant kinematics and injury mechanisms. The severity of this test condition, however, made it difficult to discriminate between good and bad performing roof structures. While the test program provided valuable insight into occupant kinematics and injury mechanisms, the occupant kinematics were inherently unrepeatable. As a result, it was determined that the development of an improved roof crush standard based on dynamic rollover testing was not feasible.
The agency also contracted with Pioneer Engineering and later EASi Engineering to design and test a reinforced roof structure for a Nissan pickup.
NHTSA also began investigating other possible test procedures for upgrading FMVSS No. 216. One such procedure was the inverted vehicle drop test, defined in SAE J996
Additional testing was then conducted using a modified FMVSS No. 216 test with increased loads to produce more extensive roof crush (254 mm (10 inches) and 381 mm (15 inches), instead of the 127 mm (5 inches) requirement in the standard).
It is noted that a statistical analysis of the findings showed the modified FMVSS No. 216 procedure results strongly correlated with the dynamic results of inverted drop tests (correlation coefficient of 0.94). This correlation was based on energy equivalence between the results of the two sets of tests. To further validate the relationship (energy equation), additional vehicle testing was performed using the modified 216 test. The energy equation was then used to predict the dynamic performance of the same vehicle types drop tested at two different heights. The energy equation from the modified 216 deviated from the two dynamic drop heights by no more than about 15 percent.
NHTSA conducted an analytical study to explore the relationship between roof intrusion and the severity of injury. To evaluate the relationship between injury, occupant parameters and belt slack, the agency conducted a comparative study
(1) Headroom reduction (pre- versus post-crash) by more than 70% substantially increased the risk of head injury from roof contact.
(2) Head injury increased when the post crash headroom was less than the original headroom. Also, as the severity of the injury increased, the percentage of cases with no remaining headroom increased.
(3) When the intrusion exceeded the original headroom, the percentage of injured occupants was 1.8 times the percentage of uninjured occupants.
(4) The average percent of headroom reduction for injured occupants was more than twice that of uninjured occupants.
This section discusses a range of issues and presents a series of questions for public comment to aid the agency in evaluating the current roof crush standard and whether further action by the agency is warranted. These issues and questions are grouped according to the following areas: (1) Current test procedure; (2) alternative dynamic tests; and (3) limiting headroom reduction.
1. Agency analysis of crash data indicates that injury levels did not progressively increase with roof intrusion until severe amounts of intrusion were established. In addition, vehicles that perform well in roof crush tests do not appear to better protect occupants from more severe roof intrusion in real world crashes. Are there more appropriate ways than the current FMVSS No. 216 test procedure to measure roof intrusion that would
2. Are FMVSS No. 216's testing procedures, particularly the test plate load requirement and plate angles, adequate for simulating real world rollover conditions? If not, please identify more appropriate testing parameters and explain the basis for the belief that this parameter is more appropriate.
3. Beginning in the mid-1990's, the composition of the light duty vehicle fleet has been drastically changing with an increasing proportion of this fleet consisting of light trucks. This has been accompanied by increases in GVWR for some of these vehicles. In the past, vehicles with a GVWR of more than 6,000 pounds were typically used for commercial applications as work vehicles. However, today's larger light trucks, particularly sport utility vehicles, are now typically used as an everyday means for personal transportation. Currently, the requirements of FMVSS No. 216 are not applicable to many of these vehicles because they exceed 6,000 pounds GVWR. Is it appropriate for NHTSA to propose extending the applicability of FMVSS No. 216 to vehicles with a 10,000 pounds GVWR?
4. FMVSS No. 216's test load application is not representative of dynamic roof crush rates in real-world rollovers. Our standard currently applies the load at a rate of 13 mm per second, which is far less than the loading rate in a real-world rollover. However, agency research demonstrates that static loading in the current standard and dynamic loading in inverted drop tests can be correlated by use of a dynamic equivalency factor/equation. Is such a factor appropriate for equating static and dynamic roof intrusion? If so, is it appropriate or necessary for the agency to conduct further research into finding appropriate dynamic conditions through inverted vehicle drop testing before proceeding with a proposal? Or, is it more appropriate for the agency to accept the current static loading as “good enough,” based on the correlation already found, and proceed with a proposal based on what we now know?
5. As mentioned above, the current standard uses a quasi-static rate of load application that is not representative of real-world dynamic roof intrusion. Full vehicle dynamic testing is most representative of real-world rollover conditions. However, it has been difficult to attain repeatable results when testing vehicles. Factors such as the orientation/altitude of the vehicle at the initiation of the rollover, the tolerance of the speed of the vehicle and test cart before roll initiation and the method of initiating the roll cause variability in testing. To date, the agency has evaluated two dynamic tests to better simulate real-world rollovers. This includes: (1) the full vehicle rollover test (as defined in FMVSS No. 208, “Frontal Occupant Protection”); and (2) an inverted vehicle drop test (as defined in the Society of Automotive Engineers Recommended Practice J996).
a. Is it appropriate to consider using the FMVSS No. 208 dynamic rollover procedure for testing vehicles and, if so, are there any means of reducing/eliminating the test variability resulting from dynamic conditions?
b. With regard to SAE J996, should the agency require inverted drop testing as requested by R. Ben Hogan and Associates? Have manufacturers or others evaluated the drop angle conditions for inverted drop tests? What complications with the test have manufacturers experienced? (In agency testing, certain vehicles experienced complications in testing at the angles prescribed within J996, whereas ground contact with the hood or top of the front quarter panel occurred prior to, or just after, contact with the roof structure, resulting in less energy being imparted to the roof structure.) Also, have manufacturers or others evaluated the effects of different drop heights? If so, what attempts have been made to equate drop height to real-world deformation or injury severity?
6. Have any other dynamic rollover test procedures been evaluated by manufacturers or other interested parties? Have manufacturers or other parties assessed any new criteria for experimental dynamic rollover tests? Have manufacturers or other parties performed dynamic rollover testing using dummies? If so, what injury criteria do manufacturers or other parties use to assess performance in that dynamic test?
7. Agency research analysis demonstrates that limiting the reduction of headroom between the occupant's head and the roof reduces injuries in rollovers. More specifically, this research shows a moderate correlation between post crash headroom elimination and the severity of injury to the head, neck or face resulting from roof contact. However, this benefit only exists for belted occupants.
Can limiting headroom reduction offer quantifiable benefits for unbelted occupants in rollover crashes? Are there quantifiable benefits for belted occupants in rollover crashes where roof intrusion does not exceed the top of the occupant's head?
8. If NHTSA were to incorporate a headroom limitation in a compliance procedure, either as percentage of the original cabin environment or an absolute crush requirement based upon maintaining room over the head of an anthropomorphic dummy, what would be an appropriate limitation and would there be any problems associated with such a requirement? Should different limitations be made to accommodate different size occupants?
Interested persons are invited to submit comments in response to this request for comments. For easy reference, the agency has consecutively numbered its questions. NHTSA requests that commenters respond to each question by these numbers and provide all relevant factual information of which they are aware to support their conclusion or opinions, including but not limited to statistical data and estimated cost and benefits, and the source of such information. It is also requested, but not required, that 10 copies be submitted.
All comments must not exceed 15 pages in length (49 CFR 553.21). Necessary attachments may be appended to these submissions without regard to the length limitation. This limitation is intended to encourage commenters to state their positions and arguments as concisely as possible.
If a commenter wishes to submit certain information under a claim of confidentiality, three copies of the complete submission, including purportedly confidential business information, should be submitted to the
Comments on this notice will be available for inspection in the docket. NHTSA will continue to file relevant information as it becomes available in the docket after the closing date. Those persons desiring to be notified upon receipt of their written comments in the Docket Section should enclose, in the envelope with their comments, a self addressed stamped postcard. Upon receipt, the docket supervisor will return the postcard by mail.
49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.50.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Public hearing notice.
Notice is hereby given that the National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce, will hold public hearings for the purpose of receiving comments on the proposed rule to amend the regulations protecting sea turtles to enhance their effectiveness in reducing sea turtle mortality resulting from shrimp trawling in the Atlantic and Gulf Areas of the southeastern United States, published in the
See
Robert Hoffman (ph. 727-570-5312, fax 727-570-5517, e-mail Robert.Hoffman@noaa.gov), or Therese A. Conant (ph. 301-713-1401, fax 301-713-0376, e-mail Therese.Conant@noaa.gov).
The hearings are scheduled as follows:
1. October 24, 2001 at 7 p.m. to 9 p.m., Madeira Beach, FL
2. November 1, 2001, at 7 p.m. to 9 p.m., Charleston, SC
3. November 5, 2001, at 7 p.m. to 9 p.m., Beaufort, NC
4. November 5, 2001, at 7 p.m. to 9 p.m., Kenner, LA
5. November 6, 2001, at 7 p.m. to 9 p.m., Brunswick, GA
6. November 7, 2001, at 7 p.m. to 9 p.m., Galveston, TX
7. November 8, 2001, at 7 p.m. to 9 p.m., Port Isabel, TX
8. November 9, 2001, at 7 p.m. to 9 p.m., Cocoa, FL
The hearings will be held in the following locations:
1. Madeira Beach City Hall, 300 Municipal Dr., Madeira Beach, FL 33708
2. South Carolina Department of Natural Resources, Marine Resources Research Institute Main Auditorium, 217 Fort Johnson Rd., Charleston, SC 29412
3. Duke Marine Laboratory, I.E. Grey Library Auditorium Building, 135 Duke Marine Lab Rd., Beaufort, NC 28516
4. Airport Hilton, Main Ballroom, 901 Airline Dr., Kenner, LA 70062
5. University of Georgia, Marine Extension Service Office, 715 Bay St., Brunswick, GA 31520
6. Texas A&M University, Classroom Laboratory Building, Room 100, 200 Seawolf Parkway, Galveston, TX 77553
7. Laguna Madre Learning Center at the Port Isabel High School Lecture Hall, Highway 100, Port Isabel, TX 78578
8. Brevard Agricultural Center Auditorium, 3695 Lake Dr., Cocoa, FL 32926
Forest Service, Agriculture.
Notice of meeting.
The Deschutes Provincial Advisory Committee will meet on November 8, 2001 at the Jefferson County Fire Hall on the corner of Adam and “J” Street in Madras, Oregon. A business meeting will begin at 9 a.m. and finish at 3:30 p.m. Agenda items will include a discussion on the Lower Deschutes Data Committee Charter, Northwest Forest Plan Monitoring, Recreation Fee Demo, Issue Team Approval of the Upper Deschutes Resource Management Plan, Future Meeting Dates and Topics, Information Sharing and a Public Forum from 3 p.m. until 3:30 p.m. All Deschutes Province Advisory Committee Meetings are open to the public.
Mollie Chaudet, Province Liaison, USDAFS, Bend-Ft. Rock Ranger District, 1230 NE 3rd, Bend, OR 97701, Phone (541) 416-6872.
Natural Resources Conservation Service, USDA.
Notice of Availability of Finding of No Significant Impact.
Pursuant to Section 102(2)(c) of the National Environmental Policy Act of 1969; the Council on Environmental Quality Regulations (40 CFR part 1500); and the Natural Resources Conservation Service Regulations (7 CFR part 650); the Natural Resources Conservation Service, U.S. Department of Agriculture, gives notice than an environmental impact statement is not being prepared for the San Carlos Watershed, Pinal County, Arizona.
Michael Somerville, State Conservationist, Natural Resources Conservation Service, 3003 North Central Avenue, Suite 800, Phoenix, Arizona, 85012. Telephone: (602) 280-8808.
The environmental assessment of this Federally assisted action indicates that the project will not cause significant local, regional, or national impacts on the environment. As a result of these findings, Michael Somerville, State Conservationist, has determined that the preparation and review of an environmental impact statement are not needed for this project.
The project purposes are agricultural water management and includes a mixture of land treatment and management practices to conserve irrigation water. The planned works of improvement include irrigation land leveling, suitable irrigation water conveyance, structures for turnouts and water measurement for irrigation water management, and plant, and fertility management practices (not cost-shared) including irrigation water management, crop residue use, conservation cropping sequence, appropriate erosion control practices as needed, nutrient management and pest management. All works of improvement are on previously cropped land.
The Notice of a Finding of No Significant Impact (FONSI) has been forwarded to the Environmental Protection Agency and to various Federal, State, and local agencies and interested parties. A limited number of copies of the FONSI are available to fill single copy requests at the above address. Basic data developed during the environmental assessment are on the file and may be reviewed by contacting Donald Paulus, at (602) 280-8780.
No administrative action on implementation of the proposal will be taken until 30 days after the date of this publication in the
Natural Resources Conservation Service (NRCS) in Michigan, US Department of Agriculture.
Notice of availability of proposed changes in Michigan NRCS FOTG, Section IV for review and comment.
It is the intention of NRCS in Michigan to issue revised conservation practice standards in Section IV of the FOTG. The revised standards include:
Comments will be received on or before November 21, 2001.
Inquire in writing to Kevin Wickey, Assistant State Conservationist for Technology, Natural Resources Conservation Service, 3001 Coolidge Road, Suite 250, E. Lansing, MI 48823 or telephone Mr. Wickey at 517-324-5279. Copies of these standards will be made available upon written request. You may submit electronic requests and
Section 393 of the Federal Agriculture Improvement and Reform Act of 1996 states that revisions made after enactment of the law, to NRCS state technical guides used to carry out highly erodible land and wetland provisions of the law, shall be made available for public review and comment.
For the next 30 days, the NRCS in Michigan will receive comments relative to the proposed changes. Following that period, a determination will be made by the NRCS in Michigan regarding disposition of those comments and a final determination of change will be made.
Bureau of the Census, Commerce.
Notice of determination.
The Bureau of the Census (Census Bureau) is conducting the 2001 Company Organization Survey. The survey's data are needed, in part, to update the multiestablishment companies in the Business Register. The survey, which has been conducted annually since 1974, is designed to collect information on the number of employees, payroll, geographic location, current operational status, and kind of business for the establishments of multilocation companies. We have determined that annual data collected from this survey are needed to aid the efficient performance of essential governmental functions and have significant application to the needs of the public and industry. The data derived from this survey are not available from any other source.
Paul Hanczaryk, Economic Planning and Coordination Division, U.S. Census Bureau, Room 2747, Federal Building 3, Washington, DC 20233-6100, telephone (301) 457-4058.
Title 13, United States Code, Sections 182, 195, 224, and 225, authorize the Census Bureau to undertake surveys necessary to furnish current data on the subjects covered by the major censuses. This survey will provide continuing and timely national statistical data for the period between economic censuses. The next economic censuses will be conducted for the year 2002. The data collected in this survey will be within the general scope, type, and character of those that are covered in the economic censuses. Form NC-9901 will be used to collect the desired data.
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a current, valid Office of Management and Budget (OMB) control number. In accordance with the Paperwork Reduction Act, 44 U.S.C., Chapter 35, the OMB approved Form NC-9901 on November 3, 1999, under OMB Control Number 0607-0444. We will furnish report forms to organizations included in the survey, and additional copies are available on written request to the Acting Director, U.S. Census Bureau, Washington, DC 20233-0101.
I have, therefore, directed that the 2001 Company Organization Survey be conducted for the purpose of collecting these data.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Final Results of Antidumping Duty Administrative Review.
On August 10, 2001, the Department of Commerce published the preliminary results of its administrative review of the antidumping duty order on anhydrous sodium metasilicate from France for sales made by Rhone-Poulenc, S.A., for the period January 1, 2000, through December 31, 2000. We gave interested parties an opportunity to comment on the preliminary results of review but received no comments. Therefore, these final results of review have not changed from those presented in the preliminary results of review, in which we applied total adverse facts available.
October 22, 2001.
Dunyako Ahmadu or Richard Rimlinger, Office of Antidumping/Countervailing Duty Enforcement, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-0198 or (202) 482-4477, 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. In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations are to the regulations codified at 19 CFR Part 351 (2001).
On August 10, 2001, the Department published in the
Imports covered by the order are shipments of anhydrous sodium metasilicate, a crystallized silicate which is alkaline and readily soluble in water. Applications include waste paper de-inking, ore-flotation, bleach stabilization, clay processing, medium or heavy duty cleaning, and compounding into other detergent formulations. This merchandise is classified under the
We received no comments from interested parties, and we have determined that no changes to the preliminary results are warranted for purposes of these final results. The weighted-average dumping margin for Rhone-Poulenc, S.A., for the period January 1, 2000, through December 31, 2000, is 60.00 percent.
The Department will issue appraisement instructions for Rhone-Poulenc merchandise directly to the Customs Service.
Furthermore, the following deposit rates will be effective upon publication of these final results 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 Rhone-Poulenc, S.A., will be 60.00 percent; (2) for previously reviewed or investigated companies not listed 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 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) for all other producers and/or exporters of this merchandise, the cash deposit rate shall be 60.0 percent, the “all others” rate established in the LTFV investigation (45 FR 77498, November 24, 1980). This deposit rate shall remain in effect until publication of the final results of the next administrative review.
Pursuant to 19 CFR 351.402(f)(2) this notice serves as a final reminder to importers of their responsibility to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this determination in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of antidumping duty administrative review: certain welded carbon steel pipes and tubes from Thailand.
On April 12, 2001, the Department of Commerce (“the Department”) published in the
Based on our analysis of the comments received, the final results differ from the preliminary results of review. The final weighted-average dumping margin for the reviewed firm is listed below in the section entitled “Final Results of the Review.”
October 22, 2001.
Javier Barrientos or Sally Gannon, Import Administration, International Trade Administration, U.S. Department of Commerce, Washington, DC 20230; telephone: (202) 482-2243 and (202) 482-0162, respectively.
Unless otherwise indicated, all citations to the statute are references to the Tariff Act of 1930 (“the Act”), as amended, 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 (2000).
On April 12, 2001, the Department published its preliminary results in this administrative review.
The Department has conducted this administrative review in accordance with section 751 of the Act.
The products covered by this antidumping order are certain welded carbon steel pipes and tubes from Thailand. The subject merchandise has an outside diameter of 0.375 inches or more, but not exceeding 16 inches. These products, which are commonly referred to in the industry as “standard pipe” or “structural tubing,” are hereinafter designated as “pipe and tube.” The merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) item numbers 7306.30.1000, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085, and 7306.30.5090. Although the HTSUS subheadings are provided for convenience and Customs purposes, our written description of the scope of the order is dispositive.
All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the “Issues and Decision Memorandum”
Based on verification and our analysis of comments received and of the database calculations, we have changed our results from the preliminary results of review. For the final results of review, duty drawback has been adjusted to reflect the decisions the Department has reached for the final results. These changes are discussed in the relevant sections of the
We determine that the following weighted-average percentage margin exists for the period March 1, 1999, through February 29, 2000:
The Department shall determine, and Customs shall assess, antidumping duties on all appropriate entries. The Department will issue appraisement instructions directly to the Customs Service. In accordance with 19 CFR 351.212(b), we have calculated exporter/importer-specific assessment rates. We divided the total dumping margins for the reviewed sales by the entered value of those reviewed sales for Saha Thai. We will direct Customs to assess the resulting percentage margins against the entered value for the subject merchandise on each of Saha Thai's entries during the review period.
The following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of certain welded carbon steel pipes and tubes from Thailand entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate for Saha Thai will be the rate shown above; (2) for previously reviewed or investigated companies not listed 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 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) if neither the exporter nor the manufacturer is a firm covered in these or any previous reviews conducted by the Department, the cash deposit rate will be the “all others” rate established in the original LTFV investigation, which is 15.67 percent. These deposit requirements shall remain in effect until publication of the final results of the next administrative review.
The cash deposit rate has been determined on the basis of the selling price to the first unaffiliated U.S. customer.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (“APOs”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary affirmative countervailing duty determination.
October 22, 2001.
Alexander Amdur at (202) 482-5346 or Mark Manning (202) 482-3936, Office of AD/CVD Enforcement IV, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
The Department of Commerce (the Department) preliminarily determines that countervailable subsidies are being provided to certain producers and exporters of Polyethylene Terephthalate Film, Sheet, and Strip (PET film) from India. For information on the estimated countervailing duty rates, please see the “Suspension of Liquidation” section of this notice.
This investigation was initiated on June 6. 2001.
For purposes of this investigation, the products covered are all gauges of raw, pretreated, or primed PET film, whether extruded or coextruded. Excluded are metallized films and other finished films that have had at least one of their surfaces modified by the application of a performance-enhancing resinous or inorganic layer of more than 0.00001 inches thick. Imports of PET film are classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under item number 3920.62.00. HTSUS subheadings are provided for convenience and Customs purposes. The written description of the scope of this proceeding is dispositive.
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 to the regulations codified at 19 CFR part 351 (2000).
Because India is a “Subsidy Agreement Country” within the meaning of section 701(b) of the Act, the International Trade Commission (ITC) is required to determine whether imports of the subject merchandise from India materially injure or threaten material injury to a U.S. industry. On July 11, 2001, the ITC published its preliminary determination finding that there is a reasonable indication that an industry in the United States is being materially injured by reason of imports from India of subject merchandise.
On September 28, 2001, the petitioners submitted a letter requesting alignment of the final determination in this investigation with the final determination in the companion antidumping duty investigation. Therefore, in accordance with section 705(a)(1) of the Act, we are aligning the final determination in this investigation with the final determination in the antidumping duty investigation of PET film from India.
The period of investigation (POI) for which we are measuring subsidies is April 1, 2000, through March 31, 2001, which corresponds to the period for the respondents' most recently completed fiscal year.
Under section 351.524(d)(2)(i) of the Department's regulations, 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 the 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, pursuant to section 351.524(d)(2)(ii) of the Department's regulations. For assets used to manufacture plastic film, such as PET film, the IRS tables prescribe an AUL of 9.5 years.
In their questionnaire responses, Ester, Garware, Garware Chemicals, and Polyplex have calculated company-specific AULs by dividing the aggregate of their respective annual average gross book values of their depreciable productive fixed assets by their aggregated annual charge to accumulated depreciation for a ten-year period in the manner specified by section 351.524(d)(2)(iii) of the Department's regulations. Using this method, Ester and Polyplex calculated an AUL of 18 years, and Garware and Garware Chemical calculated an AUL of 19 years. Based on information submitted by the respondents, we have preliminarily determined to use company-specific AUL data when calculating the AUL for Ester, Garware, and Polyplex. For Garware Chemical, we did not use any AUL in our calculations because Garware Chemical did not report the use of any non-recurring subsidies.
In accordance with section 351.505(a)(3)(i) of the Department's regulations, for those programs requiring the application of a short-term benchmark interest rate, we used company-specific, short-term interest rates on commercial loans as reported by the respondents. With respect to the
For those programs requiring a rupee-denominated discount rate or the application of a rupee-denominated, long-term benchmark interest rate, we used, where available, company-specific, weighted-average interest rates on comparable commercial long-term, rupee-denominated loans. We did not use those long-term loans that had unpaid interest or principal payments because we do not consider such loans to be comparable loans under section 771(5)(E)(ii) of the Act and section 351.505(a)(2)(i) of the Department's regulations. We note that some respondents did not have rupee-denominated, comparable long-term loans from commercial banks for all required years. Therefore, for those years, we had to rely on a rupee-denominated, long-term benchmark interest rate that is not company-specific, but still provides a reasonable representation of industry practice, in order to determine whether a benefit was provided to the companies from rupee-denominated, long-term loans received from the GOI. Pursuant to 19 CFR 351.505(a)(3)(ii), we used national average interest rates for those years in which the respondents did not report company-specific interest rates on comparable commercial loans. We based these national average interest rates on information on long-term, rupee-denominated financing from private creditors in the International Monetary Fund's publication
Because Garware owns 80 percent of Garware Chemicals, an affiliated supplier of an input to Garware that is primarily dedicated to the production of the subject merchandise, we have examined whether cross-ownership exists between the two companies within the meaning of section 351.525(b)(6) of our regulations. Section 351.525(b)(6)(vi) of the regulations defines cross-ownership as existing “where one corporation can use or direct the individual assets of the other corporation(s) in essentially the same ways it can use its own assets. Normally, this standard will be met where there is a majority voting ownership interest between two corporations or through common ownership of two (or more) corporations.”
Given Garware's 80 percent ownership in Garware Chemicals, and the fact that Garware Chemicals supplies an input to Garware that is primarily dedicated to the production of the subject merchandise, we preliminarily determine that cross-ownership exists and that subsidies received by Garware Chemicals are attributable to the products sold by both corporations in accordance with section 351.525(b)(6)(iv) of the Department's regulations. Thus, for purposes of this preliminary determination, for all applicable programs except for the electricity duty exemption scheme, we have calculated a subsidy rate for Garware Chemicals for each program by dividing Garware Chemicals' countervailable subsidies during the POI under each program by the sum of the two companies' total sales (excluding the sales between Garware and Garware Chemicals) (for domestic subsidies), or appropriate export sales (for export subsidies) during the POI. We then added these subsidy rates to Garware's calculated subsidy rates for each applicable program to calculate Garware's total subsidy rate.
For the electricity duty exemption scheme, due to the manner in which Garware and Garware Chemicals pay for their electricity charges, and the manner in which they receive the benefit through this program (
Furthermore, since Garware owns 80 percent of Garware Chemicals, guarantees almost all of Garware Chemicals' loans, and is in a position to control Garware Chemicals' finances, we calculated company-specific long-term benchmark interest rates for both Garware and Garware Chemicals based on both companies' reported long-term loans. We did not calculate company-specific short-term benchmark interest rates based on both companies' short-term loans because Garware Chemicals did not report its short-term loans. However, we intend to issue a supplemental questionnaire to Garware Chemicals requesting that it report such loans, and use these loans to calculate company-specific short-term benchmark interest rates based on both Garware's and Garware Chemicals' short-term loans in the final determination.
The Reserve Bank of India (RBI), through commercial banks, provides short-term pre-shipment financing, or “packing credits,” to exporters. Upon presentation of a confirmed export order or letter of credit to a bank, companies may receive pre-shipment loans for working capital purposes,
Post-shipment export financing consists of loans in the form of discounted trade bills or advances by commercial banks. Exporters qualify for
In general, post-shipment loans are granted for a period of no more than 180 days. For loans not repaid within the due date, exporters lose the concessional interest rate on this financing.
We find that the provision of the pre- and post-shipment export financing constitutes a financial contribution pursuant to section 771(5)(D)(i) of the Act. To determine whether a benefit was conferred under the pre- and post-shipment export financing programs for rupee-denominated loans,
The Department has previously found both pre-shipment and post-shipment export financing to be contingent upon export performance and, therefore, to constitute export subsidies.
To calculate the subsidy rates for the pre-shipment export financing, we divided the total amount of benefit to each respondent by each respondent's total exports. Accordingly, we preliminarily determine the net countervailable subsidy under the pre-shipment export financing program to be 1.43 percent
With regard to rupee-denominated post-shipment loans, the respondents have indicated that post-shipment financing can be tied to specific export contracts. Therefore, when calculating the net subsidy rate for rupee-denominated post-shipment loans, we divided the benefits received by each respondent under this program by their respective sales of subject merchandise made to the United States during the POI. On this basis, we preliminarily determine the net countervailable subsidy under the post-shipment export financing program to be 1.59 percent
The DEPS enables exporting companies to earn import duty exemptions in the form of passbook credits rather than cash. Prior to the POI, exporting companies could obtain DEPS credits on a pre-export or on a post-export basis. The GOI reported that the pre-export DEPS program was abolished effective April 1, 2000.
All exporters are eligible to earn DEPS credits on a post-export basis, provided that the exported product is listed in the GOI's standard input-output norms (SION). Post-export DEPS credits can be used for any subsequent imports, regardless of whether they are consumed in the production of an export product. Post-export DEPS credits are valid for 12 months and are transferable. With respect to subject merchandise, exporters were eligible to earn credits equal to 15 percent of the f.o.b. value of their export shipments during the fiscal year ending March 31, 2001. During the POI, Ester, Garware, and Polyplex all earned post-export DEPS credits.
The criteria regarding the remission, exemption or drawback of import duties is set forth in 19 CFR 351.519. Pursuant to this provision, the entire amount of an import duty exemption is countervailable if the government does not have in place and apply a system or procedure to confirm which imports are consumed in the production of the exported product and in what amounts. In
Consequently, in
Under 19 CFR 351.519(b)(2), if a program permits exemption of import duties upon export, the Department normally will consider the benefit as having been received upon exportation. The Department calculates the benefit on an “earned” basis (that is, upon export) where it is provided, as in the DEPS program, as a percentage of the value of the exported merchandise on a shipment-by-shipment basis, and the exact amount of the exemption is known.
Under 19 CFR 351.524(c), this program provides a recurring benefit because DEPS credits provide exemption from import duties. To derive the DEPS program rate, we first calculated the value of the post-export credits that the respondents earned for their export shipments of subject merchandise to the United States during the POI by multiplying the f.o.b. value of each export shipment by the percentage of DEPS credit allowed under the program for exports of subject merchandise. We then subtracted as an allowable offset the actual amount of application fees paid for each license in accordance with section 771(6) of the Act. Finally, we took this sum (the total value of the licenses net of application fees paid) and divided it by each respondent's total respective exports of subject merchandise to the United States during the POI.
On this basis, we preliminarily determine the net countervailable subsidy from this program to be 15.63 percent
During the POI, Ester and Garware sold two types of import licenses—SILs for Quality and SILs for Trading Houses. SILs for Quality are licenses granted to exporters which meet internationally-accepted quality standards for their products, such as the International Standards Organization (ISO) standards. SILs for Trading Houses are licenses granted to exporters that meet certain export targets. Both types of SILs permit the holder to import products listed on a “Restricted List of Imports” in amounts up to the face value of the SIL. Under the program, the SILs do not exempt or reduce the amount of import duties paid by the importer.
In addition, Garware reported in its September 27, 2001 response that it surrendered certain SILs to the GOI during the POI because it had not met its export obligation for materials that it had imported in previous years under the “Advance Licence under Duty Exemption Entitlement Certificate Scheme, wherein the company had undertaken to export with a minimum value addition of 33%” (
The Department has previously determined that the sale of SILs constitutes an export subsidy because companies receive these licenses based on their status as exporters. See,
Furthermore, by using other SILs granted by the GOI to fulfill its export obligation under the pre-export DEPS program, Garware avoided the expense of having to purchase SILs on the open market to fulfill this obligation. Since Garware received these SILs (like its SILs sold during the POI) because of its status as an exporter, we preliminarily find that the use of SILs constitutes a countervailable export subsidy in accordance with section 771(5A)(B) of the Act. Pursuant to section 771(5)(D)(i) of the Act, the financial contribution in the use of SILs consists of the expense that Garware avoided by not having to buy SILs on the open market, the amount of which constitutes the benefit from the use of SILs under section 771(5)(E) of the Act. At verification, we intend to obtain information on whether Garware received other benefits from the use of SILs, such as avoiding the payment of penalties for not meeting its export obligation under the pre-export DEPS program.
The respondents also reported the application fees that they paid to obtain those SILs that they sold during the POI. We preliminarily determine that the application fees paid by the respondent companies for the SILs qualify as an “* * * application fee, deposit, or similar payment paid in order to qualify for, or to receive, the benefit of the countervailable subsidy.”
We calculated the net subsidy rate for the sale and (for Garware) the use of SILs in the following manner. We first calculated the total amount of proceeds each respondent received from its sales of these licenses (net of application fees). For Garware, we added to the proceeds the expense that Garware avoided by not having to buy SILs on the open market, which we calculated based on the prices that Garware received for the sale of its SILs during the POI. Because the receipt of SILs cannot be segregated by type or destination of export, we then divided the resulting amounts for each respondent by its respective total export sales for the POI. On this basis, we preliminarily determine the net countervailable subsidy to be 0.00 percent
The GOI indicated that the SIL scheme was abolished on March 31, 2001. However, the GOI has not yet submitted a copy of any legislation to substantiate the termination of this program. During verification, we will seek to confirm whether this program has been terminated and whether its termination qualifies as a “program-wide change” under 19 CFR 351.526. If we can substantiate during verification that there has been a program-wide change, we will adjust the cash deposit rates to reflect the termination of this program in our final determination.
The EPCGS provides for a reduction or exemption of customs duties and an exemption from excise taxes on imports of capital goods. Under this program, producers may import capital equipment at reduced rates of duty by undertaking to earn convertible foreign exchange equal to four to five times the value of the capital goods within a period of eight years. Failing to meet the export obligation, a company is subject to payment of all or part of the duty reduction, depending on the extent of the export shortfall, plus penalty interest.
The respondents reported that they imported machinery under the EPCGS in the years prior to the POI and during the POI. For some of their imported machinery, the respondents met their export requirements. As a result, the GOI completely waived the amount of import duties. However, the respondents have not completed their export requirements for other imports of capital machinery. Therefore, although the respondents received a reduction in import duties when the capital machinery was imported, the final waiver on the potential obligation to repay the duties has not yet been made by the GOI.
In
We determine that the GOI provided a financial contribution under section 771(5)(D)(i) of the Act, and the respondents benefitted under section 771(5)(E) of the Act, in two ways by participating in this program. The first financial contribution and benefit to the respondents is the waiver of import duty on imports of capital equipment. Because the GOI has formally waived the unpaid duties on those imports, we have treated the full amount of the waived duty exemptions as a grant received in the year in which the GOI officially granted the waiver.
The criteria to be used by the Department in determining whether to allocate the benefits from a countervailable subsidy program is specified under 19 CFR 351.524. Specifically, recurring benefits are not to be allocated but are to be expensed to the year of receipt, while non-recurring benefits are to be allocated over time. For the preliminary determination of this investigation, non-recurring benefits will be allocated over 18 years for Ester and Polyplex, and 19 years for Garware, the company-specific AUL of assets as reported by the respondents.
Normally, tax benefits are considered to be recurring benefits and are expensed in the year of receipt. Since import duties are a type of tax, the benefit provided under this program is a tax benefit, and, thus, normally would be considered a recurring benefit. However, the Department's regulations recognize that, under certain circumstances, it is more appropriate to allocate over time the benefits of a program normally considered a recurring subsidy, rather than to expense the benefits in the year of receipt. Section 351.524(c)(2) of the Department's regulations provides that a party can claim that a subsidy normally treated as a recurring subsidy should be treated as a non-recurring subsidy and enumerates the criteria to be used by the Department in evaluating such a claim. In the Preamble to our regulations, the Department provides an example of when it may be more appropriate to consider the benefits of a tax program to be non-recurring benefits, and, thus, allocate those benefits over time.
In their questionnaire responses, the respondents reported all of the capital equipment imports they made using EPCGS licenses and the application fees they paid to obtain their EPCGS licenses. We preliminarily determine that the application fees paid by the respondent companies qualify as an “* * * application fee, deposit, or similar payment paid in order to qualify for, or to receive, the benefit of the countervailable subsidy.”
In order to calculate the benefit received from the waiver of the respondent companies' import duties on their capital equipment imports, we determined the total amount of duties waived in each year (net of application fees). Consistent with our approach in
A second type of financial contribution and benefit conferred under this program involves the import duty reductions that the respondents received on the imports of capital equipment for which the respondents have not yet met their export requirements. For those capital equipment imports, the respondents have unpaid duties that will have to be paid to the GOI if the export requirements are not met. Therefore, we determine that the companies had outstanding contingent liabilities during the POI. When a company has an outstanding liability and the repayment of that liability is contingent upon subsequent events, our practice is to treat any balance on that unpaid liability as an interest-free loan.
We determine that the amount of contingent liability to be treated as an interest-free loan is the amount of the import duty reduction or exemption for which the respondents applied but, as of the end of the POI, had not been finally waived by the GOI. Accordingly, we determine the benefit to be the interest that the respondents would have paid during the POI had they borrowed the full amount of the duty reduction at the time of import. We note that this approach is consistent with the methodology employed in
To calculate the program rate, we combined, where applicable, the sum of the allocated benefits received on waived duties and the benefits conferred on the respondents in the form of contingent liability loans. We then divided each respondent's total benefit under the program by its respective total export sales during the POI. For Garware Chemicals, we used the total export sales of Garware and Garware Chemicals as the denominator in this calculation. We added the resulting percentages for Garware and Garware Chemicals to calculate Garware's total rate. On this basis, we
The State of Maharashtra (SOM) grants a package scheme of incentives for privately-owned (
Garware and Garware Chemicals reported that they participate in the sales tax incentive program. Prior to 1997, Garware received a deferral through this program for submitting the state sales tax to the SOM that it collected on its sales, and during the POI, still owed the SOM for part of the pre-1997 deferred taxes. After 1997, Garware received an exemption through this program from the payment and collection of state sales tax. Garware Chemicals also received an exemption through this program from the payment and collection of state sales tax.
We preliminarily find that this program is specific within the meaning of sections 771(5A)(D)(i) and (iv) of the Act because the benefits of this program are limited to privately-owned (
First, for the sales taxes exempted, a benefit exists to the extent that the taxes paid by Garware and its affiliate as a result of this program are less than the taxes these companies would have paid in the absence of the program.
Second, for the sales taxes deferred, the Department treats such deferred indirect taxes as a government-provided loan in the amount of the taxes deferred. A benefit thus exists to the extent that the appropriate interest charges are not collected.
To calculate the program rate, we first summed Garware's benefits received on exempted sales taxes on purchases during the POI and the benefits conferred in the form of unpaid interest on the deferred sales taxes. We then divided Garware's total benefit under the program by its total sales during the POI. For Garware Chemicals, we divided the amount of benefits received on exempted sales taxes on purchases during the POI by the sum of Garware's and Garware Chemicals' total sales (excluding sales between Garware and Garware Chemicals). We added the resulting percentages for Garware and Garware Chemicals to calculate Garware's total subsidy rate. On this basis, we preliminarily determine the net countervailable subsidy from this program to be 1.92 percent
Another incentive that the SOM provides as part of the package scheme of incentives is an exemption from the payment of tax on electricity charges. This exemption is available to manufacturers located in certain regions of Maharashtra. Garware and Garware Chemicals reported that they received an exemption from the payment of tax on electricity charges through this program.
Because the SOM has forgone or not collected revenue otherwise due, we preliminarily find that the tax exemption provided through this program constitutes a financial contribution within the meaning of section 771(5)(D)(ii) of the Act. We also preliminarily find that this program is specific within the meaning of section 771(5A)(D)(iv) of the Act because the benefits of this program are limited to industries located within designated geographical regions within the SOM. In regard to the benefit to Garware and its affiliate under this program pursuant to section 771(5)(E) of the Act, we preliminarily find that the benefit consists of the amount of tax exempted on electricity charges through this program during the POI.
In our calculation of the subsidy rate for this program, we treated the benefit under this program as a recurring benefit, and took into account the manner in which Garware and Garware Chemicals pay for their electricity charges, and the manner in which they receive the benefit from this program. Garware reported that it pays the electricity charges (net of the exempted electricity tax) for both Garware and Garware Chemicals, and Garware Chemicals subsequently compensates Garware for the amount of the electricity that it actually consumed. Since Garware pays for the electricity charges for both companies, Garware and Garware Chemicals do not separately benefit from the exemption of the tax on electricity charges, but rather jointly benefit through Garware's joint payment of electricity charges, and joint exemption of electricity taxes. Since these two companies do not separately benefit from this program, we preliminarily determine that it is appropriate to directly calculate a joint subsidy rate for this program, rather than to calculate two separate subsidy rates, and then combine the rates to calculate Garware's overall rate. We therefore calculated the subsidy rate for this program by dividing the total amount of electricity tax exempted during the POI for both companies under this program by the sum of the two companies total sales (excluding the sales between Garware and Garware Chemicals). On this basis, we preliminarily determine the net countervailable subsidy from this program to be 0.37% percent
The State of
We preliminarily find that this program is specific within the meaning of sections 771(5A)(D) (i) and (iv) of the Act because the benefits of this program are limited to the industries not otherwise excluded, and the benefits are based, in part, on the area in which companies invest capital. We also preliminarily find that the SUP, in the same manner as the SOM (
We calculated the net subsidy rate for this program for each company by dividing each company's total amount of sales tax not paid on purchases through this program during the POI by each company's total sales for the POI.
In order for the Department to consider a drawback program, such as the Advance License Scheme, to be not countervailable, the government must have in place and apply a reasonable system or procedure to confirm which inputs are consumed in the production of the exported products and in what amounts. In
• This program has a built-in monitoring system by virtue of the application process and the manner in which the amount of duty exemption to be granted is limited by the quantity stipulated in the license.
• the GOI grants an advance license only for items listed on the SION for that industry.
• the GOI will grant the license for the items and quantities requested by a company only if the items and amounts requested are listed on the SION for the product.
• the items specified in the advance licenses as items to be imported are items that are used in the production of the relevant exported merchandise.
• the GOI is able to base the duties to be exempted (when those imports are made using the license) on the amounts of imported inputs necessary for producing the product.
We also determined in
We further determined in
In the present case, the record evidence indicates that the Advance License Program during the POI contained those same features that we found in
Under this program, which is part of the SOM's package of incentives, industrial establishments that make capital investments in specific regions of Maharashtra are entitled to the refund of octroi duty, a tax levied by local authorities on goods that enter a town or district. Garware reported that it participates in this program, and that it has filed claims for the refund of octroi duty, but that it has not received any refund so far under this program. Since the SOM has not refunded any octroi duty to Garware, the SOM has not provided a financial contribution to Garware within the meaning of section 771(5)(D) of the Act. Moreover, since Garware has not received any refund
Capital Incentive Scheme
Capital Incentive Scheme
Infrastructure Assistance Schemes
In their questionnaire responses, the GOI, Ester, and Polyplex referenced a sales tax incentive for exports under Section 4-B of the Uttar Pradesh Trade Tax Act. The Department has not previously investigated this program. However, it appears that this incentive may be a countervailable subsidy, pursuant to section 775 of the Act. Therefore, the Department is including this program in this investigation.
Under this program, the SUP exempts from the state sales tax purchases of inputs required for the manufacture of goods that will ultimately be exported. According to the GOI, the sales tax authorities make an annual assessment of whether the exporter has claimed excess rebates by comparing the (tax-free) raw materials purchased to the exports actually made. Ester and Polyplex reported that they purchased such tax-free inputs during the POI.
Ester claims that this program does not provide a benefit under 19 CFR 351.517 because the amount of the indirect tax remission is not greater than the amount that would have been paid if the goods had been sold domestically. The GOI also states that this program is permissible under paragraph 1 of Annex II of the WTO Agreement on Subsidies and Countervailing Measures because the program remits “prior-stage cumulative indirect taxes on goods that are used in the production of exported products.”
Section 351.517(a) of the Department's regulations states that in the case of an exemption upon export of indirect taxes, a benefit exists only to the extent that the Department determines that the amount exempted “exceeds the amount levied with respect to the production and distribution of like products when sold for domestic consumption.” However, the information on the record is not sufficient to evaluate how the sales tax authorities assess whether exporters have claimed excess sales tax exemptions through this program, and, accordingly, whether the sales tax exemptions in this program exceed the amount of sales tax levied on inputs used in production of domestically-sold merchandise. Therefore, the information on the record is not sufficient to evaluate whether the sales tax exemptions at issue confer a benefit under section 771(5)(E) of the Act. At verification, we intend to seek additional information about how this program operates, and closely examine how the sales tax authorities assess whether exporters have claimed excess sales tax exemptions through this program.
In accordance with section 782(i) of the Act, we will verify the information submitted by respondents prior to making our final determination.
In accordance with section 703(d)(1)(A)(i) of the Act, we have calculated individual rates for the companies under investigation (Ester, Garware, and Polyplex). To calculate the “all others” rate, we weight-averaged the individual rates of these companies by each company's respective sales of subject merchandise made to the United States during the POI. These rates are summarized in the table below:
In accordance with section 703(d)(1)(B) of the Act, we are directing the U.S. Customs Service to suspend liquidation of all entries of the subject merchandise from India, which are entered or withdrawn from warehouse, for consumption on or after the date of the publication of this notice in the
In accordance with section 703(f) of the Act, we will notify the ITC of our determination. In addition, we are making available to the ITC all non-privileged and nonproprietary information relating to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order, without the written consent of the Assistant Secretary for Import Administration.
In accordance with section 705(b)(2) of the Act, if our final determination is affirmative, the ITC will make its final determination within 45 days after the Department makes its final determination.
In accordance with 19 CFR 351.310, we will hold a public hearing, if requested, to afford interested parties an opportunity to comment on this preliminary determination. Any requested hearing will be tentatively scheduled to be held 57 days from the date of publication of the preliminary determination at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Individuals who wish to request a hearing must submit a written request within 30 days of the publication of this notice in the
Requests for a public hearing should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and, (3) to the extent practicable, an identification of the arguments to be raised at the hearing. In addition, six copies of the business proprietary version and six copies of the non-proprietary version of the case briefs must be submitted to the Assistant Secretary no later than 50 days from the date of publication of the preliminary determination. As part of
This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act.
Notice of application to amend an Export Trade Certificate of Review.
The Office of Export Trading Company Affairs (“OETCA”), International Trade Administration, Department of Commerce, has received an application to amend an Export Trade Certificate of Review (“Certificate”). This notice summarizes the proposed amendment and requests comments relevant to whether the Certificate should be issued.
Vanessa Bachman, Acting Director, Office of Export Trading Company Affairs, International Trade Administration, (202) 482-5131 (this is not a toll-free number) or E-mail at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from state and federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. Section 302(b)(1) of the Export Trading Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in the
Interested parties may submit written comments relevant to the determination whether an amended Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked privileged or confidential business information will be deemed to be nonconfidential. An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Office of Export Trading Company Affairs, International Trade Administration, Department of Commerce, Room 1104H, Washington, DC. 20230. Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 90-4A005.”
The California Kiwifruit Commission and California Kiwifruit Exporters Association's (“CKC”) original Certificate was issued on August 10, 1990 (55 FR 33740, August 17, 1990) and previously amended on November 27, 1990 (55 FR 50204, December 5, 1990); January 29, 1991 (56 FR 4601, February 5, 1991); and February 24, 1992 (57 FR 6712, February 27, 1992). A summary of the application for an amendment follows.
1. Add each of the following companies as a new “Member” of the Certificate within the meaning of section 325.2(1) of the Regulations (15 CFR 325.2(1)): Stellar Distributing, Fresno, California; George Brothers, Sultana, California; Trinity Fruit Sales Co., Clovis, California; Sun Pacific Marketing Coop., Los Angeles, California; and Regatta Tropicals, Arroyo Grande, California;
2. Delete the following companies as “Members” of the Certificate: Alkop Farms, Inc., Chico, California; Bartell Marketing, Inc., Fresno, California; Blue Anchor, Inc., Sacramento, California; Coast to Coast Produce Co., San Luis Obispo, California; Nash De Camp Company, Visalia, California; and Richland Sales Co., McFarland, California; and
3. Change the listing of the company names for the current Members: Kings Canyon Fruit Sales Corp. to the new listing Kings Canyon/Corrin Sales Corp.; Venida Packing Inc. to the new listing Venida Packing Co.; and Wil-Ker-Son Kiwifruit Ranch to the new listing WKS/Wil-Ker-Son Ranch.
Center for Sponsored Coastal Ocean Research/Coastal Ocean Program (CSCOR/COP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of Funding Availability for financial assistance for project grants and cooperative agreements.
The purpose of this notice is to advise the public that CSCOR/COP is soliciting 1-year and 2-year proposals to support coastal ecosystem studies in South Florida including Florida Bay, Florida Keys, the Florida Keys National
The deadline for receipt of proposals at the COP office is 3 p.m., e.s.t. November 29, 2001. (Note that late-arriving applications provided to a delivery service on or before November 28, 2001, with delivery guaranteed before 3 p.m., e.s.t. on November 29, 2001, will be accepted for review if the applicant can document that the application was provided to the delivery service with delivery to the address listed below guaranteed prior to the specified closing date and time, and, in any event, the proposals are received in the COP office by 3 p.m., e.s.t., no later than 2 business days following the closing date.)
Submit the original and 19 copies of your proposal to Center for Sponsored Coastal Ocean Research/Coastal Ocean Program (N/SCI 2), SSMC#4, 8th Floor, Station 8243, 1305 East-West Highway, Silver Spring, MD 20910. NOAA and Standard Form Applications with instructions are accessible on the following COP Internet Site: http://www.cop.noaa.gov under the COP Grants Support Section, Part D, Application Forms for Initial Proposal Submission. Forms may be viewed and, in most cases, filled in by computer. All forms must be printed, completed, and mailed to CSCOR/COP with original signatures. Blue ink for original signatures is recommended but not required. If you are unable to access this information, you may call CSCOR/COP at 301-713-3338 to leave a mailing request.
Background information on the South Florida Ecosystem Restoration Prediction and Modeling program, including descriptions of presently funded projects, results, data management, and programmatic infrastructure (including small boat access and policy) can be found at http://www.aoml.noaa.gov/ocd/sferpm.
Background information on the Florida Bay and Adjacent Marine Systems Interagency Science Program, including the Program Management Committee (PMC), Scientific Oversight Panel (SOP), copies of the annual science conference abstracts, workshop reports, and present Strategic Science Plan, can be found at http://www.aoml.noaa.gov/flbay.
Background information regarding Florida Keys National Marine Sanctuary can be found at http://www.fknms.nos.noaa.gov.
Background information regarding South Florida Ecosystem Restoration (SFER) in general can be found at http://www.sfrestore.org, but the Comprehensive Everglades Restoration Plan (CERP) can be found at http://www.evergladesplan.org.
For complete program description and other requirements criteria for the Coastal Ocean Program, see COP’s General Grant Administration Terms and Conditions annual notification in the
This program is one of the Federal and state programs contributing to the Florida Bay and Adjacent Marine Systems Interagency Science Program, which is designed to understand the effects of South Florida ecosystem restoration.
The activities conducted to restore the South Florida ecosystem occur predominantly upstream of Florida Bay, and restoration impacts may not be direct or immediate. Through funding of the research priorities identified here, COP will fund an integrated suite of activities to better understand the coastal and marine ecosystem adjacent to the Everglades, comprising Florida Bay and the FKNMS. The GOAL of the complete effort is to develop a capability to predict the impacts of proposed Everglades Restoration activities on the coastal system from the mangroves to the coral reefs.
To address the goal of developing a capability to predict changes in coastal ecosystems resulting from Restoration activities, this announcement has five specific areas of interest: nutrient inputs and dynamics, water quality, circulation and physical oceanography, fisheries and protected resources, and Florida Keys habitat characterization and research.
(1) Nutrient Inputs and Dynamics. Proposals are solicited to quantitatively address the extent, relative contribution, and distribution of groundwater-derived nutrients into Florida Bay and the FKNMS at present and under various upstream water management alternatives. Proposals are also solicited on nutrient cycles within the water column and between the water column and benthos. A priority topic for nutrient proposals will be biogeochemical processes (including the microbial loop) governing the bio-availability of organic nitrogen.
(2)
(3)
(4)
(5)
Over the past several years, there has been a decline in the abundance of live coral in the FKNMS and shifting patterns of relative abundance of seagrass species in Florida Bay. Recently, management issues concerning hardbottom communities could not be addressed because of a lack of ecological research. Proposals are now solicited to investigate (a) causes of coral decline with emphasis on cause and effect; (b) possible associations between water quality and seagrass distribution; and (c) the functional significance of hardbottom communities in the FKNMS ecosystem.
The fully protected zones of the FKNMS, including the Tortugas Ecological Reserve, were created to assist in the protection of biological diversity and to disperse resource utilization in order to reduce user conflicts and to lessen the concentrated impact to marine organisms on heavily used reefs. Proposals are solicited to monitor commercially important species (e.g., spiny lobster) and key depleted fishery species (e.g., queen conch) and to create ecosystem models of reef fish communities to predict the effects of zoning on species diversity, abundance, and trophic structure.
This document requests full proposals only. The provisions for proposal preparation provided here are mandatory. Proposals received after the published deadline or proposals that deviate from the prescribed format will be returned to the sender without further consideration. Information regarding this announcement, additional background information, and required Federal forms are available on the COP home page.
Applications submitted in response to this announcement require an original proposal and 19 proposal copies at time of submission. This includes color or high-resolution graphics, unusually sized materials, or otherwise unusual materials submitted as part of the proposal. For color graphics, submit either color originals or color copies. The stated requirements for the number of proposal copies provide for a timely review process. Facsimile transmissions and electronic mail submission of full proposals will not be accepted.
All recipients must follow the instructions in the preparation of the CSCOR/COP application forms included in this document in Part II: Further Supplementary Information, (10) Application forms and kit. Each proposal must also include the following eight elements:
(1)
(2)
The summary should appear on a separate page, headed with the proposal title, institution(s), investigator(s), total proposed cost and budget period. It should be written in the third person. The summary is used to help compare proposals quickly and allows the respondents to summarize these key points in their own words.
(3)
This section should clearly identify project management with a description of the functions of each PI within a team. It should provide a full scientific justification for the research, do not simply reiterate justifications presented in this document. It should also include:
(a) The objective for the period of proposed work and its expected significance;
(b) The relation to the present state of knowledge in the field and relation to previous work and work in progress by the proposing principal investigator(s);
(c) A discussion of how the proposed project lends value to the program goal;
(d) Potential coordination with other investigators; and,
(e) References cited.
Reference information is required. Each reference must include the name(s) of all authors in the same sequence in which they appear in the publications, the article title, volume number, page numbers and year of publications. While there is no established page limitation, this section should include bibliographic citations only and should not be used to provide parenthetical information outside the 15-page project description.
(4)
(5)
At time of proposal submission, all applicants must submit the Standard Form, SF-424 (Rev 7-97) Application for Federal Assistance to indicate the total amount of funding proposed for the whole project period. Applicants must also submit a COP Summary Proposal Budget Form for each fiscal year increment. Multi-institution proposals must include a Summary Proposal Budget Form for each institution. Use of this budget form will provide for a detailed annual budget and for the level of detail required by the COP program staff to evaluate the effort to be invested by investigators and staff on a specific project. The COP budget form is compatible with forms in use by other agencies that participate in joint projects with COP and can be found on the COP home page under COP Grants Support, Part D. All applications must include a budget narrative and a justification to support all proposed budget categories. The SF-424A, Budget Information (Non-Construction) Form, will be requested only from those applicants subsequently recommended for award.
(6)
(7)
(1)
(2)
(3)
(4)
If an application is selected for funding, NOAA has no obligation to provide any additional prospective funding in connection with that award in subsequent years. Renewal of an award to increase funding or to extend the period of performance is based on satisfactory performance and is at the total discretion of the funding agency.
Publication of this notice does not obligate any agency to any specific award or to obligate any part of the entire amount of funds available. Recipients and subrecipients are subject to all Federal laws and agency policies, regulations and procedures applicable to Federal financial assistance awards.
(5)
(7)
Applications from non-Federal and Federal applicants will be competed against each other. Proposals selected for funding from non-Federal applicants will be funded through a project grant or cooperative agreement under the terms of this notice. Proposals selected for funding from NOAA employees shall be effected by an intra-agency fund transfer. Proposals selected for funding from a non-NOAA Federal agency will be funded through an inter-agency transfer.
PLEASE NOTE: Before non-NOAA Federal applicants may be funded, they must demonstrate that they have legal authority to receive funds from another Federal agency in excess of their appropriation. Because this announcement is not proposing to procure goods or services from applicants, the Economy Act (31 USC 1535) is not an appropriate legal basis.
(8)
(9)
(10)
(11)
(l2)
(13)
(14)
(a) Participate in meetings for planning and coordination of the Program. This includes attending and contributing to the annual Interagency Florida Bay Science Program Conference, Research Team Meetings, and other relevant technical workshops.
(b) Promptly quality control their data and make them readily available through the Coordinating Office in accordance with the Data Policy, mentioned earlier in this document.
(c) Assist the Coordinating Office in the synthesis and interpretation of research results and the development of products of value to restoration and resource.
(d) Work with the Coordinating Office regarding small boat requirements (if any) to schedule access to the dedicated research vessel (description available on the SFERPM website earlier cited). If your project will have small boat needs that you cannot furnish, please provide description and schedule requirements in your proposal.
(e) If your project uses or relies on data/information from the NOAA CMAN SEAKEYS meteorological/oceanographic monitoring network, please provide description and requirements in your proposal. Similarly, if your project uses/relies on data/information from research categories in this Announcement, other than the one you are proposing to study, please describe.
For a complete description of other requirements, see COP’s General Grant Administration Terms and Conditions annual Document in the
(f) The Department of Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements contained in the
(15)
(16) This notification involves collection-of-information requirements subject to the Paperwork Reduction Act. The use of Standard Forms 424, 424A, 424B, and SF-LLL has been approved by the Office of Management and Budget (OMB) under control numbers 0348-0043, 0348-0044, 0348-0040 and 0348-0046.
The following requirements have been approved by OMB under control number 0648-0384: a Summary Proposal Budget Form (30 minutes per response), a Project Summary Form (30 minutes per response), a standardized format for the Annual Performance Report (5 hours per response), a standardized format for the Final Report (10 hours per response) and the submission of up to 20 copies of proposals (10 minutes per response). The response estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Leslie.McDonald@noaa.gov. Copies of these forms and formats can be found on the COP home page under Grants Support sections, Parts D and F.
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection displays a currently valid OMB control number.
Office of Oceanic and Atmospheric Research, NOAA, DOC.
Notice of open meeting.
The Science Advisory Board (SAB) was established by a Decision Memorandum dated September 25, 1997, and is the only Federal Advisory Committee with responsibility to advise the Under Secretary of Commerce for Oceans and Atmosphere on long- and short-range strategies for research, education, and application of science to resource management. SAB activities and advice provide necessary input to ensure that National Oceanic and Atmospheric Administration (NOAA) science programs are of the highest quality and provide optimal support to resource management.
The meeting will be open to public participation with two 30-minute time periods set aside for direct verbal comments or questions from the public. The SAB expects that public statements presented at its meetings will not be repetitive of previously submitted verbal or written statements. In general, each individual or group making a verbal presentation will be limited to a total time of five (5) minutes. Written comments (at least 35 copies) should be received in the SAB Executive Director's Office by October 29, 2001, in order to provide sufficient time for SAB review. Written comments received by the SAB Executive Director after October 29 will be distributed to the SAB, but may not be reviewed prior to the meeting date. Approximately thirty (30) seats will be available for the public including five (5) seats reserved for the media. Seats will be available on a first-come, first-served basis.
Dr. Michael Uhart, Executive Director, Science Advisory Board, NOAA, Rm. 10600,1315 East-West Highway, Silver Spring, Maryland 20910. (Phone: 301-713-9121, Fax: 301-713-0163, E-mail: Michael.Uhart@noaa.gov); or visit the NOAA SAB website at http://www.sab.noaa.gov.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit.
Notice is hereby given that Jennifer Burns, Ph.D., University of Alaska Anchorage, Department of Biological Sciences, 3211 Providence Drive, Anchorage, AK 99508, has been issued a permit to import specimens collected from Canadian populations of harbor seal (
The permit and related documents are available for review upon written request or by appointment in the following office(s):
Permits and Documentation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 713-2289; fax (301) 713-0376;
Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668; phone (907) 586-7221; fax (907) 586-7249.
Amy Sloan or Ruth Johnson, (301) 713-2289.
On August 23, 2001, notice was published in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit.
Notice is hereby given that Mystic Aquarium, 55 Coogan Blvd., Mystic, CT 06355 (Dr. Lisa Mazarro, Principal Investigator) has been issued a permit to take Steller sea lions for purposes of scientific research.
The permit and related documents are available for review upon written request or by appointment. See
Tammy Adams or Amy Sloan, (301)713-2289.
On July 31, 2001, notice was published in the
Issuance of this permit, as required by the ESA, was based on a finding that such permit (1) was applied for in good faith, (2) will not operate to the disadvantage of the endangered species which is the subject of this permit, and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
Documents may be reviewed in the following locations:
Permits and Documentation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 713-2289; fax (301) 713-0376;
Northwest Region, NMFS, 7600 Sand Point Way NE, BIN C15700, Bldg. 1, Seattle, WA 98115-0700; phone (206) 526-6150; fax (206) 526-6426;
Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668; phone (907) 586-7221; fax (907) 586-7249;
Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; phone (562) 980-4001; fax (562) 980-4018;
Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930-2298; phone (978) 281-9200; fax (978) 281-9371; and
Southeast Region, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702-2432; phone (727) 570-5301; fax (727) 570-5320.
Proposed Collection; Comment Request.
The United States Patent and Trademark Office (USPTO), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before December 21, 2001.
Direct all written comments to Susan K. Brown, Records Officer, Data Administration Division, Office of Data Management, United States Patent and Trademark Office, Crystal Park 3, Suite 310, Washington, DC 20231; by telephone at (703) 308-7400; or by electronic mail at
Requests for additional information should be directed to Joyce R. Johnson, Manager of the Assignment Division, United States Patent and Trademark Office, Crystal Gateway 4, Room 300, 1213 Jefferson Davis Highway, Arlington, Va. 22202; by telephone at (703) 308-9706; or by electronic mail at Joyce.Johnson@uspto.gov.
As part of the responsibilities outlined by 35 U.S.C. 261 and 262 for patents, and 15 U.S.C. 1057 and 1060 of the Trademark Act of 1946 for trademarks, the USPTO records a variety of documents submitted to them by the public, corporations, other federal agencies, and Government-owned or Government-controlled corporations. These individuals, federal agencies, and corporations can submit various documents that establish their rights and/or titles for patents and trademarks to the USPTO for recording. This process officially and publicly establishes their rights and titles. These documents typically include items such as transfers of properties (
Once a document has been recorded, it is available to the public. All recorded documents, except for those under secrecy orders or those in which the federal government has a documented interest, can be viewed by the public. The public uses these documents to conduct ownership and chain-of-title searches. The public can view these records either at the USPTO or the National Archives and Records Administration, depending on when they were recorded.
To make the recording process faster, more efficient, and more accurate, the USPTO developed the Patent and Trademark Assignment System (PTAS). This system helps automate the movement of the various documents to be recorded throughout the USPTO Assignment Division.
In order to accurately record a document and to take advantage of the speed and efficiency of the PTAS, the USPTO developed cover sheets to submit with the document to be recorded. These cover sheets capture all of the necessary data needed to accurately record the various documents.
By mail, facsimile, or hand delivery to the USPTO.
Estimated Total Annual Nonhour Respondent Cost Burden (includes capital start-up costs and filing fees): $11,020,000 per year. The filing cost for submitting a Trademark Recordation Form Cover Sheet is $40 for the first property, for a minimum total of $1,102,000 per year, and for submitting a Patent Recordation Form Cover Sheet is $40 per property, for a minimum total of $9,918,000 per year. However, the total filing cost for a Trademark Recordation Cover Sheet or a Patent Recordation Cover Sheet varies according to the number of properties involved in each submission. When submitting a Trademark Recordation Form Cover Sheet, the customer must pay the processing fee of $40 as indicated by 37 CFR 2.6(b)(6) for recording the first property in a document and $25 for each additional property in the same document. When submitting a Patent Recordation Form Cover Sheet, the customer must pay the processing fee of $40 as indicated by 37 CFR 1.21(h) for recording each property in a document.
Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (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 respondents, e.g., the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized or
Department of the Air Force, DoD.
Notice of meeting.
Pursuant to Public Law 92-463, notice is hereby given of forthcoming meeting of the Federal Advisory Committee for Air Force Academy Academic and Institutional Programs. The purpose of this meeting is to consider morale and discipline, the curriculum, instruction, physical equipment, fiscal affairs, academic methods, and other matters relating to the Academy. Certain sessions of these meetings will be closed to the public.
November 16-17, 2001.
USAF Academy, 2304 Cadet Drive, Colorado Springs, CO 80840-5002.
Major Steve Sandridge or Ms. Sue Christensen, Development and Alumni Programs Division, HQ USAFA/XPA, 2304 Cadet Drive, Suite 303, USAF Academy, Colorado Springs, CO 80840-5002, (719) 333-3668.
Pursuant to the provisions of Part 404 of Title 37, Code of Federal Regulations, which implements Public Law 96-517, as amended, the Department of the Air Force announces its intention to grant Beta LaserMike, Inc., a company having its headquarters in Dayton, Ohio, an exclusive license in any right, title and interest the Air Force has in U.S. Patent No. 5,895,927, entitled, “Electro-Optic, Noncontact, Interior Cross-Section Profiler.”
A license for this patent will be granted unless a written objection is received within 15 days from the date of publication of this Notice. Information concerning this Notice may be obtained from Mr. William H. Anderson, Associate General Counsel (Acquisition), SAF/GCQ, 1500 Wilson Blvd., Suite 304, Arlington, VA 22209-2310. Mr. Anderson can be reached at 703-588-5090/5091 or by fax at 703-588-8037.
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer invites comment son the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before November 21, 2001.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Karen Lee, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, N.W., Room 10202, New Executive Office Building, Washington, D.C. 20503 or should be electronically mailed to the internet address
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
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 Kathy Axt at (540) 776-7742 or via her internet address
Department of Education.
The Leader, Regulatory Information Management Group, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
An emergency review has been requested in accordance with the Act (44 U.S.C. Chapter 3507 (j)), since public harm is reasonably likely to result if normal clearance procedures are followed. Approval by the Office of Management and Budget (OMB) has been requested by October 26, 2001. Interested persons are invited to submit comments on or before November 21, 2001.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Cristal Thomas, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, N.W., Room 10202, New Executive Office Building, Washington, D.C. 20503 or should be electronically mailed to the internet address CAThomas@omb.eop.gov.
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, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
Responses: 21,262.
Burden Hours: 10,631.
Requests for copies of the proposed information collection request may be accessed from
Office of Fossil Energy, DOE.
Notice of application.
Aquila Energy Marketing Corporation (AEM) and Aquila, Inc. (ILA) have applied to transfer AEM's authority to export electric energy from the United States to Mexico and to Canada, pursuant to section 202(e) of the Federal Power Act, to ILA.
Comments, protests or requests to intervene must be submitted on or before November 21, 2001.
Comments, protests or requests to intervene should be addressed as follows: Office of Coal & Power Import/Export (FE-27), Office of Fossil Energy, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0350 (FAX 202-287-5736).
Xavier Puslowski (Program Office) 202-586-4708 or Michael Skinker (Program Attorney) 202-586-6667.
Exports of electricity from the United States to a foreign country are regulated and require authorization under section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)).
On August 23, 2001, the Department of Energy (DOE) issued Order Nos. EA-147-B and EA-148-B granting authority to AEM to export electric energy from the United States to Mexico and to Canada, respectively, through August 23, 2006, AEM and ILA have now applied to transfer AEM's export authority from AEM to ILA. The applicants request that the voluntary transfer be effective on the date of the liquidation of AEM and its merger into ILA. The applicants will provide the DOE with notice of completion of the liquidation and merger.
AEM, a Delaware corporation with its principal place of business in Kansas City, Missouri, is a wholly-owned subsidiary of ILA, formerly Aquila Energy Corporation, which in turn is
ILA is a Delaware corporation with its principal place of business in Kansas City, Missouri. AEM is a subsidiary of ILA. ILA is 80% owned by UtiliCorp and 20% owned by the public. ILA is restructuring its trade entities. AEM will be liquidated and merged into ILA. Upon completion of the liquidation and merger, ILA will engage in power marketing activities.
In FE Docket No. EA-254, ILA proposes to export electric energy to Mexico and to arrange for the delivery of those exports to Mexico over the international transmission facilities owned by San Diego Gas and Electric Company, El Paso Electric Company, Central Power and Light Company, and Comision Federal de Electricidad, the national utility of Mexico. In FE Docket No. EA-255, ILA proposes to export electric energy to Canada and to arrange for the delivery of those exports to Canada over the international transmission facilities owned by Basin Electric Power Cooperative, Bonneville Power Administration, Citizens Utilities, Eastern Maine Electric Cooperative, International Transmission Company, Joint Owners of the Highgate Project, Long Sault, Inc., Maine Electric Power Company, Maine Public Service Company, Minnesota Power, Inc., Minnkota Power Cooperative, New York Power Authority, Niagara Mohawk Power Corporation, Northern States Power, and Vermont Electric Transmission Company.
The construction of each of the international transmission facilities to be utilized by ILA has previously been authorized by a Presidential permit issued pursuant to Executive Order 10485, as amended.
Comments on the ILA applications to export electric energy to Mexico and/or Canada should be clearly marked with Docket EA-254 and/or Docket EA-255, respectively. Additional copies are to be filed directly with Kevin Fox, Senior Vice President and General Manager, Aquila Energy Marketing Corporation, 1100 Walnut Street, Suite 3300, Kansas City, Missouri 64106
A final decision will be made on these applications after the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969, and a determination is made by the DOE that the proposed action will not adversely impact on the reliability of the U.S. electric power supply system.
Copies of these applications will be made available, upon request, for public inspection and copying at the address provided above or by accessing the Fossil Energy homepage at
Camden Cogen, L.P. (Camden Cogen) submitted for filing a rate schedule under which Camden Cogen will engage in wholesale electric power and energy transactions at market-based rates. Camden Cogen also requested waiver of various Commission regulations. In particular, Camden Cogen requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by Camden Cogen.
On September 13, 2001, pursuant to delegated authority, the Director, OMTR/Tariffs and Rates-East, granted requests for blanket approval under Part 34, subject to the following:
Within thirty days of the date of the order, any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by Camden Cogen should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, D.C. 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214).
Absent a request to be heard in opposition within this period, Camden Cogen is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of the applicant, and compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of Camden Dogen's issuances of securities or assumptions of liability.
Notice is hereby given that the deadline for filing motions to intervene or protests, as set forth above, is October 30, 2001.
Copies of the full text of the Order are available from the Commission's Public Reference Branch, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Internet at
Cedar Brakes II, L.L.C. (Cedar Brakes) submitted for filing a rate schedule under which Cedar Brakes will engage in wholesale electric power and energy transactions at market-based rates. Cedar Brakes also requested waiver of various Commission regulations. In particular, Cedar Brakes requested that the Commission grant blanket approval under 18 CFR Part 34 of all future issuances of securities and assumptions of liability by Cedar Brakes.
On September 13, 2001, pursuant to delegated authority, the Director, OMTR/Tariffs and Rates-East, granted requests for blanket approval under Part 34, subject to the following:
Within thirty days of the date of the order, any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by Cedar Brakes 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).
Absent a request to be heard in opposition within this period, Cedar Brakes is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of the applicant, and compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of Cedar Brakes' issuances of securities or assumptions of liability.
Notice is hereby given that the deadline for filing motions to intervene or protests, as set forth above, is October 30, 2001.
Copies of the full text of the Order are available from the Commission's Public Reference Branch, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Internet at
Competitive Energy Services, LLC (CES) submitted for filing a rate schedule under which CES will engage in wholesale electric power and energy transactions at market-based rates. CES also requested waiver of various Commission regulations. In particular, CES requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by CES.
On September 20, 2001, pursuant to delegated authority, the Director, OMTR/Tariffs and Rates-East, granted requests for blanket approval under part 34, subject to the following:
Within thirty days of the date of the order, any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by CES 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).
Absent a request to be heard in opposition within this period, CES is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of the applicant, and compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of CES's issuances of securities or assumptions of liability.
Notice is hereby given that the deadline for filing motions to intervene or protests, as set forth above, is October 30, 2001.
Copies of the full text of the Order are available from the Commission's Public Reference Branch, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Internet at
Take notice on that October 10, 2001, Eastern Shore Natural Gas Company (ESNG) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Thirtieth Revised Sheet No. 7 and Thirtieth Revised Sheet No. 8, with a proposed effective date of November 1, 2001.
ESNG states that the purpose of this instant filing is to track rate changes attributable to a storage service purchased from Columbia Gas Transmission (Columbia) under its Rate Schedule FSS. The costs of the above referenced storage service comprise the rates and charges payable under ESNG's respective Rate Schedule CFSS. This tracking filing is being made pursuant to Section 3 of ESNG's Rate Schedule CFSS.
ESNG states that copies of the filing have been served upon its jurisdictional customers and interested State 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
Take notice that on September 28, 2001, Mississippi River Transmission Corporation (MRT) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the following tariff sheet to be effective October 1, 2001:
MRT states that the purpose of the filing is to reflect the implementation of a new negotiated rate.
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. This filing may also be viewed on the web at
Take notice that on October 10, 2001, 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 October 26, 2001:
Northwest states that the purpose of this filing is to clarify that under the proposal submitted by Northwest in this proceeding on September 27, 2001, a shipper that wishes to exercise a right of first refusal will not be required to match a negotiated rate bid that exceeds Northwest's maximum base tariff rate or a five-year term in order to retain its capacity.
Northwest states that it has served a copy of this filing upon all parties on the service list compiled by the Secretary in this proceeding.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such 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. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Poquonock River Funding, L.L.C. (PRF) submitted for filing a rate schedule under which PRF will engage in wholesale electric power and energy transactions at market-based rates. PRF also requested waiver of various Commission regulations. In particular, PRF requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by PRF.
On September 13, 2001, pursuant to delegated authority, the Director, OMTR/Tariffs and Rates-East, granted requests for blanket approval under part 34, subject to the following:
Within thirty days of the date of the order, any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by PRF 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).
Absent a request to be heard in opposition within this period, PRF is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of the applicant, and compatible with the public interest, and is reasonably
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of PRF's issuances of securities or assumptions of liability.
Notice is hereby given that the deadline for filing motions to intervene or protests, as set forth above, is October 30, 2001.
Copies of the full text of the Order are available from the Commission's Public Reference Branch, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Internet at
Take notice that on October 11, 2001, Portland Natural Gas Transmission System (PNGTS) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, 1st Rev Original Sheet No. 100 . The proposed effective date of this revised tariff sheet is October 1, 2001.
PNGTS states that, pursuant to Section 154.402 of the Commission's regulations and Section 17 of the General Terms and Conditions of its tariff, it is filing the referenced tariff sheet to reflect implementation of the Annual Charge Adjustment surcharge of $0.0022 per Dth. PNGTS states further that it is filing this tariff sheet within 10 days of receipt of its bill for the Annual Charge Adjustment.
PNGTS states that copies of its filing were served on all jurisdictional customers and interested state 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 on or before October 23, 2001. 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. This filing may also be viewed on the web at
San Diego Gas & Electric Company, Complainant v. Sellers of Energy and Ancillary Service Into Markets Operated by the California Independent System Operator Corporation and the California Power Exchange Corporation, Respondents.
Investigation of Practices of the California Independent System Operator and the California Power Exchange; Coral Power, L.L.C., Enron Power Marketing, Inc., Arizona Public Service Company, Cargill Alliant,LLC, San Diego Gas & Electric Company, Avista Energy, Inc.,Sempra Energy Trading Corp., PacifiCorp, and Constellation Power Source v. California Power Exchange Corporation; Salt River Project Agricultural Improvement and Power District and Sacramento Municipal Utility District v. California Power Exchange Corporation, Public Service Company of New Mexico v. California Power Exchange Corporation.
On October 5, 2001, the Official Committee of Participant Creditors (the Committee) of the California Power Exchange Corporation (CalPX) filed, under the provisions of Rule 602(d)(2) of the Commission's Rules of Practice and Procedure, an Offer of Settlement of Issues Affecting the California Power Exchange Corporation. The Offer of Settlement, among other things, proposes a methodology to account for the nonpayments by Pacific Gas & Electric Company and Southern California Edison Company and their impact on CalPX, the California Independent System Operator Corporation (CalISO), and participants in CalPX and CalISO markets. The Committee's filing also includes a motion to intervene out-of-time in Docket Nos. EL0-95-000 and EL00-98-000 and all related subdockets. The Committee also moves to intervene out-of-time in three proceedings relating to accounting issues under CalPX's tariff: EL01-36-000, EL01-37-000, and EL01-43-000.
The Committee also requests expedited consideration and approval of the Offer of Settlement, but has not requested a shortened comment period. Therefore, pursuant to Rule 602(f)(2) of the Commission's Rules of Practice and Procedure, comments on the Offer of Settlement are to filed on or before October 25, 2001. Reply comments shall be filed on or before November 5, 2001. Pursuant to Rule 213(d)(1) of the Commission's Rules of Practice and Procedure, any answers to the Committee's motion to intervene out-of-time shall be filed on or before October 20, 2001.
Take notice that on October 11, 2001, Trailblazer Pipeline Company (Trailblazer) tendered for filing to be a part of its FERC Gas Tariff, Third Revised Volume No. 1, Second Revised Sheet No. 114, to be effective December 1, 2001.
Trailblazer states that this tariff sheet was filed in compliance with the Commission's Letter Order issued in the referenced docket on September 26, 2001.
Trailblazer states that copies of the filing have been mailed to all parties set out on the Commission's official service list in Docket No. RP01-521.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such 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. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on October 10, 2001, TransColorado Gas Transmission Company (TransColorado) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, Thirty-Sixth Revised Sheet No. 21 and Ninth Revised Sheet No. 22A, to be effective October 10, 2001.
TransColorado states that the filing is being made in compliance with the Commission's letter order issued March 20, 1997, in Docket No. RP97-255-000. The tendered tariff sheets propose to revise TransColorado's Tariff to reflect a new negotiated-rate contract.
TransColorado stated that a copy of this filing has been served upon all parties to this proceeding, TransColorado's customers, the Colorado Public Utilities Commission and the New Mexico Public Utilities Commission.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such 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. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that on October 1, 2001, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing copies of the executed service agreements that contain a negotiated rate under Rate Schedule FT applicable to Phase 1 of the MarketLink Expansion Project between Transco and various MarketLink customers.
Transco states that the purpose of the filing is to comply with filing requirements specified in the Commission's Order issued December 13, 2000, “Order Amending Certificate and Denying Request for Stay” which required Transco, among other things, to file, not less than 30 days nor more than 60 days prior to the commencement of service on Phase 1 of the MarketLink Project, the negoitated rate agreements or tariff sheets reflecting the essential elements of its negotiated rate agreements. The effective date of these negoitated rate agreements is November 1, 2001.
Transco states that copies of the filing are being mailed to its affected customers and interested State Commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before October 23, 2001. 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. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
Take notice that the following filings have been made with the Commission:
Take notice that on August 15, 2001, PSEG Services Corporation, tendered for filing with the Federal Energy Regulatory Commission (Commission) a supplement to its August 8, 2001 filing submitting Service Agreement covering sale of capacity and energy to Bethlehem Steel Corporation (Bethlehem) pursuant to PSEG Wholesale Power Market-Based Sales Tariff now on file with the Commission (Docket No. 99-3151-000, approved October 1, 1999).
Copies have been sent to the New Jersey Board of Public Utilities.
Take notice that on October 4, 2001, Cambridge Electric Light Company (Cambridge Electric) tendered for filing with the Federal Energy Regulatory Commission (Commission) a non-firm point-to-point transmission service agreement between Cambridge Electric and H.Q. Energy Services (U.S.) Inc. (HQUS). Cambridge Electric states that the service agreement sets out the transmission arrangements under which Cambridge Electric will provide non-firm point-to-point transmission service to HQUS under Cambridge Electric's open access transmission tariff accepted for filing in Docket No. ER01-2291-001. Cambridge Electric requests waiver of the Commission's thirty day notice requirement in order to allow the service agreement to become effective on August 1, 2001.
Take notice that on October 10, 2001, Southern Company Services, Inc. (SCS), acting on behalf of Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, and Savannah Electric and Power Company (collectively Southern Companies), filed with the Federal Energy Regulatory Commission (Commission), Amendment No. 1 to the Agreement for Network Integration Transmission Service and Complementary Services between the United States of America, Department of Energy, acting by and through the Southeastern Power Administration (SEPA), and SCS, as agent for Southern Companies, under Southern Companies' Open Access Transmission Tariff, as directed by the Commission's letter order dated September 25, 2001. This compliance filing is made to conform to the requirements of FERC Order No. 614, Designation of Electric Rate Schedule Sheets, 65 FR 18,221 (2000), FERC Stats. & Regs. 31,096 (2000). The Agreement is designated First Revised Service Agreement FERC No. 415 under the Open Access Transmission Tariff of the Southern Companies.
Take notice that on October 4, 2001, Commonwealth Electric Company (Commonwealth) tendered for filing with the Federal Energy Regulatory Commission (Commission) a non-firm point-to-point transmission service agreement between Commonwealth and H.Q. Energy Services (U.S.) Inc. (HQUS). Commonwealth states that the service agreement sets out the transmission arrangements under which Commonwealth will provide non-firm point-to-point transmission service to HQUS under Commonwealth open access transmission tariff accepted for filing in Docket No. ER01-2291-001. Commonwealth requests waiver of the Commission's thirty day notice requirement in order to allow the service agreement to become effective on August 1, 2001.
Take notice that on October 4, 2001, Ameren Services Company (ASC) tendered for filing with the Federal Energy Regulatory Commission (Commission) Service Agreements for Firm Point-to-Point Transmission Services between ASC and Ameren Energy, Inc. and ASC and Reliant Energy Services, Inc. (the parties). ASC asserts that the purpose of the Agreements is to permit ASC to provide transmission service to the parties pursuant to Ameren's Open Access Transmission Tariff.
Take notice that on October 4, 2001, Consolidated Edison Company of New York, Inc. (Con Edison) tendered for filing with the Federal Energy Regulatory Commission (Commission) an Interconnection Agreement by and between Con Edison and the Power Authority of the State of New York, dated as of August 1, 2001. Con Edison seeks an effective date for the agreement of August 1, 2001.
Take notice that on October 4, 2001, Aquila Long Term, Inc. (Aquila Long Term), an indirect wholly owned subsidiary of Aquila, Inc., tendered for filing with the Federal Energy Regulatory Commission (Commission) a rate schedule to engage in sales at market-based rates. Aquila Long Term included in its filing a proposed code of conduct.
Take notice that on October 4, 2001, Carolina Power & Light Company (CP&L) of Raleigh, North Carolina tendered for filing with the Federal Energy Regulatory Commission (Commission) under the provisions of Section 205 of the Federal Power Act, First Revised Sheet No. 84 in substitution of Original Sheet No. 84 to its First Revised Rate Schedule No. 134 for the provision of electric generation service by CP&L to the North Carolina Electric Membership Corporation (NCEMC). The filing has the effect of eliminating CP&L's 12 kV delivery point at the Louisburg 115 kV substation. In its filing, CP&L also asked for permission to waive the delivery point termination charges that would be owned by NCEMC under Article 7.6.2 of the rate schedule.
CP&L has also asked the Commission to allow its proposed rate schedule change to become effective as of October 8, 2001.
Copies of the filing were served upon NCEMC, Wake Electric Membership Corporation and the state commissions of North Carolina and South Carolina.
Take notice that on October 4, 2001, Commonwealth Edison Company (ComEd) submitted for filing with the Federal Energy Regulatory Commission (Commission) an executed Service Agreement for Network Integration Transmission Service (Service Agreement) and associated Network Operating Agreement (Operating Agreement) between ComEd and Exelon Energy (Exelon) under the terms of ComEd's Open Access Transmission Tariff (OATT).
ComEd requests an effective date of October 1, 2001, and accordingly requests waiver of the Commission's notice requirements. A copy of this filing has been sent to Exelon.
Take notice that on October 4, 2001, Commnwealth Edison Company (ComEd) submitted for filing with the Federal Energy Regulatory Commission (Commission) two Firm Point-To-Point Transmission Service Agreements (Service Agreements) between ComEd and Wisconsin Electric Power Company (WEPCO) under the terms of ComEd's Open Access Transmission Tariff (OATT).
ComEd requests an effective date of October 1, 2001, and accordingly requests waiver of the Commission's notice requirements. A copy of this filing has been sent to WEPCO.
Take notice that on October 5, 2001, pursuant to Section 35.15 of the Commission's regulations, Alliance Energy Services Partnership (AESP) submitted for filing with the Federal Energy Regulatory Commission (Commission) a notice of cancellation of its Rate Schedule FERC No. 1 and Rate Schedule FERC No. 2.
AESP has requested an effective date for the proposed rate schedule cancellation of October 4, 2001. Accordingly, AESP requests waiver of the 60-day prior notice requirement.
Take notice that on October 5, 2001, Carolina Power & Light Company (CP&L) filed with the Federal Energy Regulatory Commission (Commission), pursuant to Section 205 of the Federal Power Act, an executed Interconnection and Operation Agreement between CP&L and Dominion Person, Inc.
Take notice that on October 5, 2001, Pennsylvania Electric Company (doing business as GPU Energy) submitted for filing with the Federal Energy Regulatory Commission (Commission) a Generation Facility Interconnection Agreement between Pennsylvania Electric Company d/b/a GPU Energy and Somerset Windpower LLC.
Take notice that on October 9, 2001, Cleco Power LLC (Cleco Power), tendered for filing with the Federal Energy Regulatory Commission (Commission) a Substitute Original Sheet No. 4 to Cleco Power's FERC Electric Tariff, Original Volume No. 2. Cleco Power also gave notice that the following service agreements of Cleco Utility Group Inc., that were canceled effective May 29, 2001, will not be refiled as Cleco Power Service Agreements because service is no longer being provided under them:
Take notice that on October 9, 2001, the New England Power Pool (NEPOOL) Participants Committee filed notification with the Federal Energy Regulatory Commission (Commission) requesting that the effective date of membership in NEPOOL of EmPower Energy, LLC (EmPower) be deferred until the first day of the calendar month following final regulatory approval permitting EmPower to participate in the NEPOOL Control Area as a load aggregator.
Take notice that on October 9, 2001, Bangor Hydro-Electric Company tendered for filing with the Federal Energy Regulatory Commission (Commission) a Notice of Cancellation of its Firm Point-to-Point Transmission Service Agreement (Service Agreement No. 31 of Tariff Volume No. 1) with Beaver Wood Joint Venture to be effective April 30, 2001.
Copies of the filing were served upon the affected purchaser, Beaver Wood Joint Venture, the Maine Public Utilities Commission, and Maine Public Advocate.
Take notice that on October 4, 2001, Aquila Energy Marketing Corporation (AEMC), filed with the Federal Energy Regulatory Commission (Commission) an application for approval pursuant to section 203 of the Federal Power Act and section 33 of the Commission's regulations of the internal transfer of certain power sales and purchase agreements to its wholly owned subsidiary Aquila Long Term, Inc. and for the transfer of AEMC's ownership of Aquila Long Term, Inc., to AEMC's parent Aquila, Inc. AEMC has asked the Commission to approve the Application within forty-five days of filing.
Take notice that on October 9, 2001, Commonwealth Atlantic Limited Partnership and Commonwealth Atlantic Power LLC filed with the Federal Energy Regulatory Commission (Commission) an application pursuant to section 203 of the Federal Power Act for authorization of a disposition of an indirect transfer of an approximately 50.04995 percent ownership interest in Commonwealth Atlantic Limited Partnership to Commonwealth Atlantic Power LLC. Commonwealth Atlantic Limited Partnership owns a 310 MW generating facility. The jurisdictional facilities transferred consist of books and records, Commonwealth Atlantic Limited Partnership's market-based rate tariff and related contracts, and the interconnection equipment associated with the generating facility.
Take notice that on August 1, 2001, Elwood Energy LLC (Elwood) filed with
Upon completion of the Mergers, Elwood will own, in addition to the generation facilities it owned before the Mergers, those generation facilities formerly owned by Elwood II and Elwood III, all of which previously have been determined by the Commission to eligible facilities in connection with its orders determining Elwood, Elwood II and Elwood III to be exempt wholesale generators. Elwood also will own interconnection facilities, including generator leads, step up transformers and associated circuit breakers, used solely for interconnection with the transmission system of Commonwealth Edison Company.
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 this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the Web at
Take notice that the following hydroelectric application has been filed with the Federal Energy Regulatory Commission and is available for public inspection:
a.
b.
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d.
e.
f.
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h.
i.
j.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Commission, 888 First Street, NE., Washington, DC. 20426. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link.
Please include the Project No. (7118-007) on any comments or motions filed.
k. Description of Project and Proposed Action: The Smelt Hill development consists of a dam, powerhouse and feeder canal, gatehouse, two fish passage structures, and a reservoir. A flood in 1996 damaged portions of the dam, the hydroelectric generating facility, and the hydraulic fish lift, rendering them inoperable. In September 2001, the Maine DMR acquired the Smelt Hill dam and associated facilities, with the intent of removing the dam to restore the aquatic ecosystem of the lower Presumpscot River. The dam would be removed by the U.S. Army Corps of Engineers.
l. Locations of this application: Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the web at
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
The following notice of meeting is published pursuant to section 3(a) of the Government in the Sunshine Act (Pub. L. No. 94-409), 5 U.S.C 552b:
Items listed on the agenda may be deleted without further notice.
This is a list of matters to be considered by the Commission. It does not include a listing of all papers relevant to the items on the agenda; however, all public documents may be examined in the reference and information center.
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement concerning the Double Eagle Refinery site, Oklahoma City, Oklahoma with the parties referenced in the Supplementary Information portion of this Notice.
The settlement requires the settling de minimis parties to pay a total of $3,323,666 as payment of past response costs to the Hazardous Substances Superfund, and a total of $73,022.90 to the U.S. Department of the Interior Natural Resource Damage Assessment and Restoration Fund. The settlement includes a covenant not to sue pursuant to sections 106 and 107 of CERCLA, 42 U.S.C. 9606 and 9607.
For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at 1445 Ross Avenue, Dallas, Texas 75202-2733.
Comments must be submitted on or before November 21, 2001.
The proposed settlement and additional background information relating to the settlement are available for public inspection at 1445 Ross Avenue, Dallas, Texas 75202-2733. A copy of the proposed settlement may be obtained from Carl Bolden, 1445 Ross Avenue, Dallas, Texas 75202-2733 at (214) 665-6713. Comments should reference the Double Eagle Refinery Superfund Site, Oklahoma City, Oklahoma and EPA Docket Number 6-07-01, and should be addressed to Carl Bolden at the address listed above.
Pamela J. Travis,1445 Ross Avenue, Dallas, Texas 75202-2733 at (214) 665-8056.
Federal Communications Commission.
Notice.
The Federal Communications Commission invites interested parties to update the record pertaining to petitions for reconsideration filed with respect to the rules adopted by the Commission in the Report and Order in IB Docket No.
Comments may be filed on or before November 21, 2001; reply comments may be filed on or before December 3, 2001.
Electronic comments may be filed using the Commission's Electronic Comment Filing System (ECFS). Comments filed through the ECFS can be sent as an electronic file via Internet to
Selina Khan of the International Bureau at 202-418-7282.
This is a summary of the Commission's
In March of 1996, the Commission released the Report and Order and Further Notice of Proposed Rulemaking,
Nine petitions for reconsideration of the 1996 Antenna Order were filed requesting that the Commission revise certain aspects of § 25.104, 47 CFR 25.104. Because many of these petitions were filed some time ago, the passage of time and intervening developments may have rendered the records developed for those petitions stale. Moreover, some issues raised in petitions for reconsideration may have become moot or irrelevant in light of intervening events, including Commission amendment of § 1.4000, 47 CFR 1.4000, to apply to antennas used to transmit as well as receive both video and non-video services.
For these reasons, the International Bureau requests that parties that filed petitions for reconsideration concerning § 25.104 following the release of the 1996 Antenna Order identify issues from that order that remain unresolved now and supplement those petitions, in writing, to indicate which findings and rules they still wish to be reconsidered. To the extent that intervening events have materially altered the circumstances surrounding filed petitions or the relief sought by filing parties, those entities may refresh the record with new information or arguments related to their original filings that they believe to be relevant to the issues. The previously filed petitions will be deemed withdrawn and will be dismissed if parties do not indicate in writing an intent to pursue their respective petitions for reconsideration. The refreshed record in the § 25.104 proceeding will enable the Commission to undertake appropriate and expedited reconsideration of its rules. The OTARD Order and the OTARD Rule are not the subject of this Public Notice inviting petitions for reconsideration.
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, and 1.419, interested parties may file Supplemental Comments, limited to the issues addressed in this
In the
For
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than November 5, 2001.
Board of Governors of the Federal Reserve System, October 16, 2001.
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 November 15, 2001.
Board of Governors of the Federal Reserve System, October 16, 2001.
The Agency for Healthcare Research and Quality (AHRQ), DHHS.
Request for public comments.
AHRQ will issue a Request for Proposals (RFP) in December 2001, to continue its Evidence-based Practice Centers Program (EPC Program). Prior to release of the RFP, AHRQ invites comments from interested parties about the EPC Program with respect to: (a) What has worked well; (b) What has not worked well; (c) What changes and improvements could be made.
AHRQ also is interested in suggestions about new opportunities. For example, what steps might AHRQ take to encourage more healthcare organizations and other relevant groups to translate EPC evidence reports into clinical practice guidelines? What steps might AHRQ take to expand the number of performance measures, educational curricula, and other quality enhancement tools derived from EPC evidence reports? How might AHRQ better track implementation of the evidence-based tools and measures derived from EPC evidence reports, that impact on patient outcomes and quality of care? Are there information technology systems that AHRQ might utilize to broaden clinician access to and use of EPC products?
To be considered for incorporation in the planned RFP, comments must be received by Friday, November 9, 2001. Comments should be sent to Jacqueline Besteman via e-mail (preferred)
Jacqueline Besteman, J.D., M.A., Director, EPC Program, Center for Practice and Technology Assessment, AHRQ, 6010 Executive Blvd., Suite 300, Rockville, MD 20852; Phone: (301) 594-4017; Fax: (301) 594-4027; E-mail:
AHRQ is the lead Federal agency for enhancing the quality, appropriateness, and effectiveness of healthcare services and access to such services. In carrying out this mission, AHRQ conducts and funds research that develops and presents evidence-based information on healthcare outcomes, quality, cost, use and access. Included in AHRQ's legislative mandate is support of syntheses and wide-spread dissemination of scientific evidence, including dissemination of methods or systems for rating the strength of scientific evidence. These research findings and syntheses assist providers, clinicians, payers, patients, and policymakers in making evidence-based decisions regarding the quality and effectiveness of health care.
In June 1997, AHRQ established the Evidence-based Practice Center Program (EPC Program) to better respond to significant changes within the health care industry. AHRQ became a science partner with private and public-sector organizations in their efforts to improve the quality, effectiveness and appropriateness of clinical practice. AHRQ awarded 5-year contracts to 12 institutions and designated them as Evidence-based Practice Centers (EPCs). Since 1997, the EPCs have conducted more than 80 systematic reviews and analyses of scientific literature on a wide spectrum of topics, incorporating
EPC evidence reports and technology assessments have been used by systems of care, professional societies, health plans, public and private purchasers, States, and other entities, as a scientific foundation for development and implementation of their own clinical practice guidelines, clinical pathways, review criteria, performance measures, and other clinical quality improvement tools, as well as for formulation of evidence-based policies related to specific health care technologies.
The objectives of the upcoming second competition for the EPC Program (EPC II) are: (1) Continuation of the methodologically rigorous systematic reviews and analyses of scientific literature on clinical, organizational, and financing systems topics; (2) updating or prior EPC reports; (3) supporting EPC methodologies assistance to professional organizations and others, to facilitate translation of the evidence reports into quality improvement tools, educational programs, etc.; and (4) expanded EPC methods and implementation research.
The EPC Program in an essential component of AHRQ's resources for evidence-based systematic reviews, analyses, and research. AHRQ intends that evidence reports, technology assessments, and research, flowing from EPC II will be more useful to a broader array of stakeholders—consumers, providers, employers, policymakers—and be more rapidly available. AHRQ invites your comments and suggestions on how to achieve these EPC Program goals.
The Centers for Disease Control and Prevention (CDC) announces the award of Fiscal Year 2001 funds in the amount of $42,140 for a one-year research grant entitled “International Pooled Analysis of Lead-Exposed Cohorts.” The recipient is Children's Hospital Research Foundation, Division of General Pediatrics, 3333 Burnet Avenue, Cincinnati, Ohio 45229-3039. Performance Period: September 30, 2001 through September 29, 2002.
This grant addresses the “Healthy People 2010” focus area of Environmental Health. The purpose of the program is to examine lead-associated cognitive deficits below 10 μg/dL.
To obtain business management technical assistance, contact: Sharron Orum, Lead Grants Management Specialist, Grants Management Branch, Procurement and Grants Office, Centers for Disease Control and Prevention, 2920 Brandywine Road, Room 3000, Atlanta, GA 30341-4146, Telephone number: (770) 488-2716, FAX: (770) 488-2777, Email address:
For program technical assistance, contact: Pamela Meyer, Epidemiologist, Division of Environmental Hazards and Health Effects, Air Pollution and Respiratory Health Branch, National Center for Environmental Health, Centers for Disease Control and Prevention, Executive Park, Building 6, Room 1043, Mailstop E-17, Atlanta, GA 30333, Telephone number: (770) 498-1015, FAX: (770) 498-1088, Email address:
The Centers for Disease Control and Prevention (CDC) announces the availability of fiscal year (FY) 2002 funds for cooperative agreements for State implementation projects for preventing secondary conditions and promoting the health of persons with disabilities. This program addresses the Healthy People 2010 focus area of Disability and Secondary Conditions.
The purpose of this program is to support States in preventing secondary conditions in persons with disabilities and in implementing effective health promotion and wellness programs for persons with disabilities.
This announcement is comprised of three levels of cooperative agreements:
Assistance will be provided to the health departments of States or their bona fide agents or designees, including the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, American Samoa, Guam, federally recognized Indian tribal governments, the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau.
Agencies applying under this announcement other than the official health department must provide written concurrence from that health agency and describe the proposed collaborative relationship. Under that circumstance, the role of the official State health agency must be shown to be complementary, collaborative, and demonstrate clearly defined programmatic commitments and obligations.
Only one application from each State or Territory may be submitted for each Level. The agency determined to be the applicant for the State may apply for more than one Level of funding under the eligibility requirements for each. Once that agency is determined, no other agency within that State can submit an application for any other Level of funding. However, a complete and separate application must be submitted from that same applicant agency/entity based on the program requirements and evaluation criteria for that component (Level) of this announcement. Only one award will be issued per State.
States are considered the most appropriate applicants since the national goals of this program include developing capacity in all States and their delivery systems to monitor, characterize, and improve the health of people with disabilities and prevent secondary conditions.
Three levels of cooperative agreements will be awarded:
To be eligible, applicants for Level I must also provide:
a. The State Plan for Disability and Health. The Plan must be established and published, and being utilized at the State level for the planning, implementation and tracking of program activities.
b. An established and functioning disability and health advisory component of which at least 30 percent of the members are people with disabilities. A listing of the advisory committee membership with their areas of expertise and interest is to be provided and certified by the committee/council chairperson, with an indication only as to the number within that group who have a disabling condition.
Documentation to determine eligibility for Level I must begin on the first page of the application narrative. Applications that fail to submit evidence listed above will be considered non-responsive and will be returned without review. A copy of the State Plan and the composition and function statement of the Advisory Council must be provided as attachments to the application.
The funding Level being requested must be clearly stated on the cover sheet of the application. A one page abstract of the proposed project should be included immediately after the table of contents.
Title 2 of the United States Code section 1611 states that an organization described in section 501(c)(4) of the Internal Revenue Code that engages in lobbying activities is not eligible to receive Federal funds constituting an award, grant or loan.
Approximately $5,000,000 will be available in FY 2002 to fund State implementation projects.
Level I State awards are expected to begin on April 1, 2002, for a twelve month budget period within a project period of up to five years.
Level II and Level III State awards are also expected to begin on April 1, 2002, for a 12-month budget period within a project period of up to three years.
Funding estimates are subject to change. Continuation awards within the approved project period will be made on the basis of satisfactory progress, reports, and the availability of funds.
These awards may be used for personnel services, supplies, equipment, travel, subcontracts, consultants, and services directly related to project activities. Funds may not be used to supplant State or local funds for the purpose of this cooperative agreement, for construction costs, to lease or purchase space or facilities, or for patient care.
By virtue of accepting an award, States are understood to have agreed to use cooperative agreement funds for travel by project staff selected to participate in CDC-sponsored workshops, and for meetings requiring out-of-state travel.
This program has no statutory matching requirement; however applicants should demonstrate and document capacity to support a portion of project costs, increase cost-sharing over time, and identify other funding sources for expanding the project.
CDC will conduct a conference call on November 7, 2001 with prospective applicants to answer questions regarding this announcement. If you wish to participate, contact by e-mail the official noted for Program Technical Assistance in the “Where to Obtain Additional Information” section of this announcement. You will be informed by return e-mail as to the time, telephone number, and pass code for that call. You are encouraged to provide advance questions that will be part of the general discussion during the call.
In conducting activities to achieve the purposes of this program, the recipient will be responsible for activities under 1. Recipient Activities, and CDC will be responsible for activities listed under 2. CDC Activities.
1. Recipient Activities for Level I projects:
a. Implement a disability and health program that is recognized within the State health department or other award agency that is visible to the population of persons with disabilities in the State and their support network.
b. Develop an operational work plan with a structured evaluation component for the first two years of the project that includes objectives, methods, benchmark time frames for accomplishment of objectives, outcomes, and staff responsibilities for specific tasks.
c. Support existing state advisory activities related to review and refinement of the State Plan, development of initiatives and objectives, and program evaluation.
d. Implement the State Plan for disability and health through: (1) Collaborating with other entities that provide services to, or advocate for people with disabilities; (2) continuing existing university partnerships and expand relationships with other institutions that sponsor disability-related programs; (3) providing assistance and curriculum guidance to service providers and educational programs that impact the lives of persons with disabilities; (4) refining existing mechanisms for computerized communications and information systems including web sites and linkages; (5) providing technical assistance to key collaborators and partners; and (6) fostering systems change to make existing health promotion efforts inclusive of people with disabilities.
e. Extend the planning process through State-sponsored Healthy People 2010 objectives or other instruments that require accountability and progress reporting.
f. Effect the collection of data using survey questions from the Behavioral Risk Factor Surveillance System (BRFSS) related modules and other survey instruments.
g. Develop and implement health promotion programs and intervention initiatives (based on or indicated by existing disability survey data or State administrative data) to work with defined populations.
h. Establish and implement a plan to evaluate the efficacy and effectiveness of the selected interventions.
i. Disseminate health promotion and secondary condition prevention information through innovative marketing plans.
j. Plan, co-sponsor, conduct, and evaluate a statewide disability and health conference by not later than the close of the second budget year.
k. Provide mentoring and training support to Level II and III State projects as a model for program operations and replication.
Recipient Activities for Level II and Level III projects: Note that items (a) through (f) relate to activities for both Level II and III applicants. Item (g) below relates only to Level II applicants.
a. Establish the organizational location and focus for the project within the applicant agency and engage key collaborators (e.g., disability service organizations, advocacy and voluntary groups, universities) in the design and attainment of program goals and objectives.
b. Expand or develop an advisory function comprised of key partners representing the disability community that can contribute to policy and planning functions. At least 30 percent of the advisory membership must have a disabling condition.
c. Promote and help develop strategic planning instruments that will influence State-level public health and health promotion activities such as Healthy People 2010 objectives.
d. Collect and analyze data using survey questions in the BRFSS or other survey instruments.
e. Investigate and document the feasibility of gaining access to or obtaining information from administrative data within the State to plan and implement activities to prevent secondary conditions and improve the health of people with disabilities to which the data relate.
f. Disseminate health promotion information through diverse and innovative marketing plans.
g. Plan, implement and evaluate over the project period health promotion interventions related to Chapter 6 objectives in Healthy People 2010 or the leading health indicators for people with disabilities.
2. CDC Activities:
a. Provide scientific and programmatic technical assistance as requested or indicated in the planning and conduct of disability data collection, communications, and health promotion activities.
b. Provide a point of referral and coordination for State, regional and/or national data pertinent to the disabling process.
c. Provide assistance to States in regard to BRFSS, or other survey-based sources of data, and assist in the analysis of the resulting information.
d. Facilitate coordination with other federal statistical research and data resources.
e. Assist State projects in their development of program evaluation measures and processes.
A non-binding letter of intent is requested from prospective applicants. The letter should not exceed one page. It should identify the announcement number, name the proposed project director, and denote the funding Level being proposed. This letter will allow CDC to determine the amount of interest in the announcement, to plan the review more efficiently, and to ensure that each applicant receives timely and relevant information prior to the application submission date.
Use the information in the Program Requirements, Application Content, Other Requirements, and Evaluation Criteria to develop the application. The application will be evaluated and scored on the criteria listed, so it is important to follow them in laying out your program plan. Potential applicants are directed to the Program Guidance, Attachment II, that is pertinent to this announcement and available on the “CDC Funding Opportunities” Web site at
For Level I applications, the narrative should be no more than 55 double-spaced pages, printed on one side, with one-inch margins, and 12 point font.
For Level II and III applications, the narrative should not be more than 50 double-spaced pages printed on one side, with one-inch margins, and 12 point font.
In all cases, the budget justification and human subjects narrative does not count against the maximum page length.
Applications must be held together only by rubber bands or metal clips and not be bound together in any other way. Attachments to the application should be held to a minimum in keeping to those items referenced or required by this Announcement.
Within the narrative, Level I applicants should provide the following information:
1. Document performance in current project activities including a progress report that re-states major objectives from the past two budget years and clearly indicates project performance in meeting those specific objectives.
2. Indicate how the State Plan and Advisory Functions are contributing to the design of the proposed work plan and how they will be used to advance and support project activities.
3. Provide accounts of how the project is assuring the inclusion of persons with disabilities within agency services and functions, and how the applicant agency is promoting the health of persons with disabilities.
4. Furnish descriptions of the epidemiologic capacity structure in place to coordinate and promote data collection and analysis including the BRFSS, other state data sources, selected administrative data sets, and with university partners. Describe how the applicant will assess the reliability and validity of epidemiological data collected and used for policy development and intervention planning.
5. Discuss the foundation and rationale for selecting the specific population(s) for health promotion and intervention programs and its congruence with Healthy People 2010 goals and objectives, health disparities, or leading health indicators for people with disabilities.
6. Identify the specific intervention design(s) proposed based on a justification that includes empirical support of the effectiveness of the proposed program in improving health and/or environmental outcomes for the selected population. Provide evidence that such support consists of documentation from research literature or credible evaluations conducted by the applicant or other investigators.
7. Provide a time interval-based graphic flowchart covering the first two years. Include the methods proposed for specific major objective attainment.
8. Denote the responsibilities of individual staff members including the level of effort and time allocation for each proposed major activity by staff position. This includes the capacity to appoint a full-time program manager/coordinator to provide oversight responsibility for the entire project.
9. Describe how the applicant will assess changes in public policy and measure the effects of its technical assistance to communities and targeted groups.
10. Denote the specific organizations that will provide services in support of the applicant's work plan, and how those services will be delivered and evaluated.
11. Describe the specific health promotion, outreach, and intervention programs proposed and how and by whom they will be implemented and evaluated.
Within the narrative, Level II and Level III applicants should provide the following information:
1. Provide background information as to why the applicant has elected to submit an application, denote the current status of disability and health programs in the state, and describe your understanding of the need for this program in the State. Include the extent of the problem, available services and support resources, at-risk groups, knowledge gaps, and the use of this award in meeting such needs.
2. Provide justification for emphasizing select populations or the sub-group of disabling conditions to be targeted by the applicant.
3. Discuss the collaborations proposed with principal partners in the conduct of the project, such as a formal university alliance that will have an impact on the capacity of the State to mount or improve efforts in health promotion and the prevention of secondary conditions.
4. Describe the roles and responsibilities of working partners denoting the products and services to be provided.
5. Outline the process for developing or completing a formal State Plan for the prevention of secondary conditions and promoting the health of people with disabilities, and describe the role of a new or existing advisory function to aid in that effort and in other assigned responsibilities.
6. Furnish descriptions of the epidemiologic capacity structure in place or proposed to coordinate and promote data collection and analysis including the BRFSS, other state data sources, selected administrative data sets, and those in conjunction with identified partners.
7. Describe the plan for how the university partnership (if selected), or collaboration with other agencies will be engaged to facilitate epidemiologic excellence toward assessing both the magnitude of disability, and the risk and protective factors related to the onset and progress of secondary conditions for the purpose of planning future health promotion priorities.
8. Describe how the applicant will assess the reliability and validity of epidemiological data collected and used for policy development and planning.
9. Provide a description of the proposed staffing for the project, and the plan to expedite filling of all positions, including the appointment of a full time program manager/coordinator.
10. Discuss the responsibilities of individual staff members including the level of effort and time allocation for each major project objective by staff position.
11. Present a graphic flowchart (i.e., Gantt chart) denoting time interval performance expectations over the first budget year.
12. Discuss how the project will measure the outcomes of proposed targeted activities (e.g., increases in public awareness, knowledge, behavior, and the overall benefits of State Planning and advisory activities) and how the project will determine the extent of changes in public policies, and measure the effects of its communications outreach directed toward communities and special populations.
13. Present how the applicant will achieve the integration of disability and health functions as a component of applicant/health agency activities, including awareness of and attention to Americans With Disabilities Act (ADA) compliance issues.
On or before November 14, 2001, submit the LOI to the Official Designated for Program Technical Assistance identified in the “Where to Obtain Additional Information” section of this announcement.
Submit the original and two copies of Form PHS 5161-1 (OMB Number 0920-0428). Forms are available in the application kit and at the following Internet address:
On or before January 10, 2002, submit the application to the Grants Management Specialist identified in the “Where to Obtain Additional Information” section of this announcement.
a. Received on or before the deadline date; or
b. Sent on or before the deadline date and received in time for submission to the objective review group. (Applicants must request a legibly dated U.S. Postal Service postmark or obtain a legibly dated receipt from a commercial carrier or the U.S. Postal Service. Private metered postmarks will not be acceptable as proof of timely mailing.)
Applications will be evaluated individually against the following criteria by an independent review group appointed by CDC.
1. Documentation of Progress and Performance in Current Project: (20 Points)
a. The extent to which the applicant provides a concise indication of its progress and performance to date, and how that work will serve as a foundation for, and directly contribute to meeting the health promotion and intervention requirements specified under this announcement.
b. The extent to which the applicant provides adequate descriptions of the activities of the planning and advisory functions, and the planned use of the products of university and other
2. Integration of disability and health activities into applicant agency public health functions: (15 Points)
a. The extent to which the applicant demonstrates clear evidence of how the project's visibility and leadership are being utilized to embrace and promote the health of people with disabilities within the State by agencies that provide disability-related services and programs.
b. The extent to which the applicant provides adequate descriptions of how it has and will continue to assure that the program services and activities funded are fully accessible to persons with disabilities. This includes how the applicant is working with the State's Americans with Disabilities Act (ADA) compliance coordinator to address and facilitate access and service equality concerns.
3. Strength of established and emerging surveillance activities: (20 Points)
a. The extent to which the applicant effectively demonstrates the epidemiologic capacity and structure in place to coordinate and facilitate data collection, analysis, interpretation, and dissemination.
b. The extent to which the applicant provides adequate descriptions of how it will conduct the BRFSS, access other State disability information sources related to the population of interest such as administrative data sets; and how such data is currently being utilized.
c. The extent to which the applicant adequately describes its plan for how the university partnership or other entities will be engaged to facilitate epidemiologic excellence toward assessing the magnitude of disability, and the risk and protective factors related to the onset and progression of secondary conditions for the purpose of setting health promotion priorities.
d. The extent to which the project demonstrates its capacity to assess the reliability and validity of epidemiological data collected and used for policy development, and directed toward defined health promotion interventions.
4. Intervention planning and targeted health promotion programs toward preventing secondary conditions: (20 points)
a. The extent to which the applicant adequately presents the methods to be employed to reach the intended audience described in the narrative during the first budget year, including how progress will be tracked and measured throughout the entire project period. This criteria includes describing and defining the specific interventions proposed.
b. The extent to which the applicant adequately describes how it will engage people with disabilities and their support networks into the design and evaluation of proposed interventions and health promotion programs.
c. The extent to which the applicant provides a comprehensive approach to provide health promotion outreach programs, technical assistance, education and training, and the proposed design of a shared information and communications dissemination system.
d. The extent to which the applicant fully describes the methods, process, and project components which it will use as a basis for providing training and counseling/mentoring support to Level II and III States.
e. The extent to which the applicant fully describes a viable plan for securing necessary human subjects approvals in a timely manner prior to implementing the proposed interventions.
5. Goals, Objectives, Management and Staffing, and Evaluation Plan: (25 Points)
a. The extent to which the established project goals and objectives are specific, measurable, achievable, and time-referenced; and based on a formal work plan with descriptive methods.
b. The extent to which the organizational placement of the project assures maximum visibility and influence, and that staff responsibilities are effectively directed toward meeting project objectives.
c. The extent to which the applicant provides adequate descriptions of key staff responsibilities addressing proposed major activities.
d. The extent to which the method to evaluate and measure the process, effects, and outcomes of the elements of the total work plan is reasonable and viable over the course of the proposed project.
e. The degree to which the applicant has met the CDC Policy requirements regarding the inclusion of women, ethnic, and racial groups in proposed research. This includes: (1) The proposed plan for the inclusion of both sexes and racial and ethnic minority populations for appropriate representation; (2) the proposed justification when representation is limited or absent; (3) a statement as to whether the design of the study is adequate to measure differences in prevalence, risk and protective factors, and program outcomes when warranted; and (4) a statement as to whether the plans for recruitment and outreach for study participants include the process of establishing partnerships with community(ies) and recognition of mutual benefits.
6. Budget Justification: (Not Scored)
The budget section must provide a clear, concise, accurate and justifiable explanation of expenditures and a full itemization of line categories for Federal and non-Federal funds comprising the total budget. It also must show consistency with the project goals and objectives and all intended uses of cooperative agreement funds.
7. Human Subjects if applicable: (Not Scored)The extent to which the applicant complies with the Department of Health and Human Services Regulations (45 CFR Part 46) regarding the protection of human subjects.
1. Evidence of Need and Understanding of the Problem:(10 Points)
a. The extent to which the applicant provides an adequate description and understanding of the magnitude of disabilities showing evidence (as available) of estimates of prevalence, demographic indicators, severity, effect on families and caregivers, and associated costs.
b. The degree to which the applicant provides a suitable description of the extent of current activities related to disability and health, including those addressing the prevention of secondary conditions within the State.
2. Evidence of Collaboration: (20 Points)
a. The extent to which the proposed collaborations are well documented with letters of commitment conveying specific indications as to the level of involvement and material effort to be provided in support of project objectives.
b. The extent to which the applicant adequately describes the proposed or existing advisory function, including evidence of representation of persons with disabilities and their role and capacity to influence State-level policy.
c. The extent to which the applicant presents evidence that demonstrates how these collaborations will result in successful infrastructure development and expansion of the project to include planning for future health promotion interventions.
d. The extent to which the proposed approach demonstrates an effective process to develop and publish a State strategic plan with a Healthy People 2010 emphasis, and/or policy directive
3. Epidemiologic Capacity: (20 Points)
a. The extent to which the application conveys the epidemiologic capacity and structure in place to coordinate and facilitate disability-related data collection, analysis, interpretation, and dissemination.
b. The extent to which the applicant adequately describes how it will conduct the BRFSS, access other State disability information sources related to the population of interest such as administrative data sets; and how such data is currently, or will be utilized.
c. The extent to which the applicant effectively describes its plan for how the university partnership or other entities will be engaged to facilitate epidemiologic excellence toward assessing the magnitude of disability, and the risk and protective factors related to the onset and progression of secondary conditions for the purpose of setting health promotion priorities.
4. Goals and Objectives and Management/Staffing Plan:(25 Points)
a. The extent to which the formal work plan includes a clear and concise presentation of project goals and objectives which are specific, measurable, achievable, and time-referenced.
b. The extent to which the organizational placement of the project assures optimal visibility and influence based on evidence provided by applicant agency leadership.
c. The extent to which the applicant provides adequate descriptions of key staff responsibilities addressing proposed major activities.
d. The extent to which the applicant effectively documents its plan to provide technical assistance, education and training, and health promotion programs; and the proposed design of a shared information and communications dissemination system.
e. The degree to which the applicant has met the CDC Policy requirements regarding the inclusion of women, ethnic, and racial groups in proposed research. This includes: (1) The proposed plan for the inclusion of both sexes and racial and ethnic minority populations for appropriate representation; (2) the proposed justification when representation is limited or absent; (3) a statement as to whether the design of the study is adequate to measure differences when warranted; and (4) a statement as to whether the plans for recruitment and outreach for study participants include the process of establishing partnerships with community(ies) and recognition of mutual benefits.
5. Program Evaluation: (15 Points)
a. The extent to which the applicant presents an appropriate and viable plan for the overall evaluation of the project; including the design, methods (quantitative methods as well as qualitative approaches such as focus groups), partners, and processes to be followed for conducting project evaluation.
b. The extent to which the applicant adequately outlines the methods and process by which it will self-evaluate its performance towards meeting all specified time-phased objectives.
6. Program services for persons with disabilities:(10 Points)
a. The extent to which the applicant addresses how it will assure and achieve integration of disability and health functions as an integral component of applicant/health agency services and operations.
b. The extent to which the applicant fully accounts for how it will work with the Americans with Disabilities (ADA) compliance office in the State toward promoting full access to applicant agency services and programs for persons with disabilities.
7. Budget Justification: (Not Scored) The budget section must provide a clear, concise, accurate and justifiable explanation of expenditures and a full itemization of line categories for Federal and non-Federal funds comprising the total budget. It also must show consistency with the project goals and objectives and all intended uses of cooperative agreement funds.
8. Human Subjects—if applicable: (Not Scored)
The extent to which the applicant complies with the Department of Health and Human Services Regulations (45 CFR Part 46) regarding the protection of human subjects.
Provide CDC with the original plus two copies of:
1. Semi-annual progress reports no later than 30 days after each six-month period;
2. Financial status report, no later than 90 days after the end of each budget period; and
3. Final financial report and performance report, no later than 90 days after the end of the project period.
Send all reports to the Grants Management Specialist identified in the “Where to Obtain Additional Information” section of this announcement.
The following additional requirements are applicable to this program. For a complete description of each, see Attachment I of the announcement.
This program is authorized under Sections 301 and 317 of the Public Health Service Act, (42 U.S.C. Sections 241 and 247(b) as amended. The Catalog of Federal Domestic Assistance number is 93.184.
This and other CDC announcements can be found on the CDC home page Internet address—
If you have questions after reviewing the contents of all the documents, business management technical assistance may be obtained from:Nancy Pillar, Grants Management Specialist,Grants Management Branch, Procurement and Grants Office,Announcement Number 02007,Centers for Disease Control and Prevention (CDC),2920 Brandywine Road, Room 3000,Atlanta, Georgia 3034-4146,Telephone: 770-488-2721,E-mail address:
For program technical assistance, contact:Joseph B. Smith, Senior Project Officer,National Center on Birth Defects and Developmental, Disabilities, CDC, 4770 Buford Highway (F-35),Atlanta, Georgia 30341,Telephone: 770-488-7082,E-mail address:
Department of Health and Human Services (HHS), the Centers for Medicare and Medicaid Services (CMS), formerly the Health Care Financing Administration.
Notice of Computer Matching Program.
In accordance with the requirements of the Privacy Act of 1974, as amended, this notice announces a renewal and modification for a computer matching agreement that CMS plans to conduct with the Social Security Administration (SSA). We have provided background information about the proposed matching program in the
CMS filed a report of the computer matching program with the Chair of the House Committee on Government Reform and Oversight, the Chair of the Senate Committee on Governmental Affairs, and the Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) on October 16, 2001. We will not disclose any information under a matching agreement until 40 days after filing a report to OMB and Congress or 30 days after publication. We may defer implementation of this matching program if we receive comments that persuade us to defer implementation.
The public should address comments to: Director, Division of Data Liaison and Distribution (DDLD), CMS, Room N2-04-27, 7500 Security Boulevard, Baltimore, Maryland 21244-1850. Comments received will be available for review at this location, by appointment, during regular business hours, Monday through Friday from 9 a.m.-3 p.m., eastern daylight time.
Lori Anderson, Health Insurance Specialist, Division of National Systems, Financial Systems and Quality Group, Center for Medicaid and State Operations, S2-11-07, CMS, 7500 Security Boulevard, N2-04-06, Baltimore, Maryland 21244-1850. The telephone number is (410) 786-6190, or facsimile (410) 786-6730.
The Computer Matching and Privacy Protection Act of 1988 (Public Law (Pub. L.) 100-503), amended the Privacy Act (5 U.S.C. 552a) by describing the manner in which computer matching involving Federal agencies could be performed and adding certain protections for individuals applying for and receiving Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 100-508) further amended the Privacy Act regarding protections for such individuals. The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, state, or local government records. It requires Federal agencies involved in computer matching programs to:
1. Negotiate written agreements with the other agencies participating in matching programs;
2. Obtain the Data Integrity Board's approval of the match agreement;
3. Furnish detailed reports about matching programs to Congress and OMB;
4. Notify applicants and beneficiaries that the records are subject to matching; and
5. Verify match findings before reducing, suspending, terminating, or denying an individual's benefits or payments.
CMS has taken action to ensure that all of the computer match programs that this agency participates in comply with the requirements of the Privacy Act of 1974, as amended.
Disclosure of Skilled Nursing Facility Admission Information.
Level Three Privacy Act Sensitive.
Centers for Medicare and Medicaid Services; and the Social Security Administration.
Authority for matching agreement is given under sections 1611(e)(1)(A) and (B) and 1631(f) of the Social Security Act (the Act) (42 U.S.C.) 1382(e)(1)(A) and (B).
The primary purpose for the renewal and modification of this matching program is to identify Social Security recipients who did not report their admission to certain skilled nursing facilities as required under applicable provisions of the Act. Such admissions would subject the amount of Supplemental Security Income (SSI) that the individual could receive for any month throughout which the individual is in such a facility to a reduced benefit rate.
In addition, under the Special Veterans' Benefits (SVB) Program, certain World War II veterans may be entitled to receive a special benefit for each month they subsequently reside outside of the United States (U.S.) after April 2000. The match will be used to identify those beneficiaries who are no longer residing outside the U.S.
SSA will furnish CMS with an electronic file on a monthly basis, extracted from SSA's “Supplemental Security Income Record,” SSA/OSR 60-0103, containing identifying information on applicants for, and recipients of, SSI benefits. CMS will match the SSA file against its “Long Term Care/Minimum Data Set System,” (No. 09-70-1517) system of records and disclose information on skilled nursing facilities admission dates. CMS's data will help enforce the provision of the Act which limits the amount of SSI individuals may receive in certain cases for any month throughout which an individual or his eligible spouse is in a hospital, extended care facility, nursing home, or intermediate care facility, and is receiving Medicare payments. The information provided by this match will help SSA determine if the individual has returned to the U.S., since an individual is entitled to receive SVB only when he/she resides outside the U.S.
The Matching Program shall become effective no sooner than 40 days after the report of the matching program is sent to OMB and Congress, or 30 days after publication in the
Department of Health and Human Services (HHS), Centers for Medicare & Medicaid Services (CMS).
Notice of Computer Matching Program (CMP).
In accordance with the requirements of the Privacy Act of 1974, as amended, this notice proposes to establish a CMP that CMS plans to conduct with the Social Security Administration (SSA), and the Internal Revenue Service (IRS). We have provided background information about the proposed matching program in the
CMS filed a report of the Computer Matching Program with the Chair of the House Committee on Government Reform and Oversight, the Chair of the Senate Committee on Governmental Affairs, and the Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) on October 16, 2001. We will not disclose any information under a matching agreement until 40 days after filing a report to OMB and Congress or 30 days after publication. We may defer implementation of this matching program if we receive comments that persuade us to defer implementation.
The public should address comments to: Director, Division of Data Liaison and Distribution (DDLD), CMS, Room N2-04-27, 7500 Security Boulevard, Baltimore, Maryland 21244-1850. Comments received will be available for review at this location, by appointment, during regular business hours, Monday through Friday from 9 a.m.-3 p.m., eastern daylight time.
John A. Albert, Health Insurance Specialist, Division of Benefits Coordination, Benefits Operations Group, Center for Medicare Management, CMS, 7500 Security Boulevard, Baltimore, Maryland 21244-1850. The telephone number is (410) 786-7457.
The Computer Matching and Privacy Protection Act of 1988 (Public Law (Pub. L.) 100-503), amended the Privacy Act (Title 5 United States Code (U.S.C.) 552a) by describing the manner in which computer matching involving Federal agencies could be performed and adding certain protections for individuals applying for and receiving Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 100-508) further amended the Privacy Act regarding protections for such individuals. The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, state, or local government records. It requires Federal agencies involved in computer matching programs to:
1. Negotiate written agreements with the other agencies participating in matching programs;
2. Obtain the Data Integrity Boards approval of the match agreement;
3. Furnish detailed reports about matching programs to Congress and OMB;
4. Notify applicants and beneficiaries that the records are subject to matching; and,
5. Verify match findings before reducing, suspending, terminating, or denying an individual's benefits or payments.
CMS has taken action to ensure that all of the computer matches programs that this Agency participates in comply with the requirements of the Privacy Act of 1974, as amended.
Medicare Secondary Payer Program.
Level Three Privacy Act Sensitive.
Centers for Medicare & Medicaid Services; Internal Revenue Service; and Social Security Administration.
This Matching Program is executed pursuant to the Privacy Act of 1974 (Title 5 United States Code (U.S.C.) 552a), as amended, and OMB Appendix I, A-130, titled:
Section 6103 (1) (12) of the IRC provides for disclosure by IRS of return information relating to taxpayer identity, filing status of the individual for any specified tax year after 1986; and if married, the identity of the spouse of the individual. Section 1862 (b)(5) of the Act provides for disclosure of the name and social security number (SSN) of each Medicare beneficiary and Medicare-eligible spouse who are identified as having received wages above the minimum level. It also provides for disclosure of the name, address, and identification number of each employer identified as providing wages above the minimum level. The minimum wage level used in this match shall be established by the Secretary of HHS prior to the match and pertains to amounts received from a qualified employer in a previous year.
The primary purpose for this matching program is to establish the conditions, safeguards, and procedures for the disclosure of information used to identify coverage in the Medicare Secondary Payer Program. CMS does not have accurate information on all Medicare beneficiaries and Medicare-eligible spouses who have medical insurance coverage that may be primary to Medicare. SSA, through information collected from employers of working-aged beneficiaries and Medicare-eligible spouses, is able to identify Medicare-eligible individuals who have primary coverage through a group health plan.
Under the terms of this matching program, the SSA will transmit to the IRS, a list of names and tax identification numbers of Medicare beneficiaries. This information is maintained in SSA's Master Beneficiary Record (MBR) System. The IRS agrees to
SSA will validate the taxpayer identity disclosed from the IMF by matching that information against the Master Files of SSN Holders (NUMIDENT). The NUMIDENT file contains records of SSNs issued to individuals by SSA. SSA will then extract employer identity information from the Earnings Recording and Self-employment Income System, referred to as the Master Earnings File. This file contains information on the starting date of employment for Medicare beneficiaries and Medicare-eligible spouses.
CMS and its agent will mail a data match questionnaire to the employers of Medicare beneficiaries or eligible spouses to verify periods of health insurance coverage and periods of employment. Instances of mistaken payments are referred to the appropriate Medicare contractor and become a part of its ongoing recovery process.
The Matching Program shall become effective no sooner than 40 days after the report of the Matching Program is sent to OMB and Congress, or 30 days after publication in the
Department of Health and Human Services (HHS), Centers for Medicare & Medicaid Services (CMS) (formerly the Health Care Financing Administration).
Notice of Computer Matching Program.
In accordance with the requirements of the Privacy Act of 1974, as amended, this notice announces the establishment of a computer matching program that CMS plans to conduct with the Social Security Administration (SSA). We have provided background information about the proposed matching program in the “Supplementary Information” section below. Although the Privacy Act requires only that CMS provide an opportunity for interested persons to comment on the proposed matching program, CMS invites comments on all portions of this notice. See
CMS filed a report of the Computer Matching Program with the Chair of the House Committee on Government Reform and Oversight, the Chair of the Senate Committee on Governmental Affairs, and the Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) on October 16, 2001. We will not disclose any information under a matching agreement until 40 days after filing a report to OMB and Congress or 30 days after publication. We may defer implementation of this matching program if we receive comments that persuade us to defer implementation.
The public should address comments to: Director, Division of Data Liaison and Distribution), Enterprise Databases Group, Office of Information Services, CMS, Mailstop N2-04-27, 7500 Security Boulevard, Baltimore, Maryland 21244-1850. Comments received will be available for review at this location, by appointment, during regular business hours, Monday through Friday from 9 a.m.-3 p.m., eastern daylight time.
Robin Dalton, Health Insurance Specialist, Division of Data Liaison and Distribution, Enterprise Databases Group, Office of Information Services, CMS, Mailstop N2-04-27, 7500 Security Boulevard, Baltimore, Maryland 21244-1850. The telephone number is (410) 786-0184, or facsimile (410) 786-5636.
The Computer Matching and Privacy Protection Act of 1988 (Public Law(Pub. L.) 100-503), amended the Privacy Act (5 U.S.C. 552a) by describing the manner in which computer matching involving Federal agencies could be performed and adding certain protections for individuals applying for and receiving Federal benefits.
Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 100-508) further amended the Privacy Act regarding protections for such individuals. The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, state, or local government records. It requires Federal agencies involved in computer matching programs to:
1. Negotiate written agreements with the other agencies participating in the matching programs;
2. Obtain the Data Integrity Board's approval of the match agreements;
3. Furnish detailed reports about matching programs to Congress and OMB;
4. Notify applicants and beneficiaries that the records are subject to matching; and
5. Verify match findings before reducing, suspending, terminating, or denying an individual's benefits or payments.
CMS has taken action to ensure that all of the computer match programs that this Agency participates in comply with the requirements of the Privacy Act of 1974, as amended.
Medicare Beneficiary Identification and Non-utilization Information on Social Security Recipients.
Level Three Privacy Act Sensitive.
The Centers for Medicare & Medicaid Services (CMS); and the Social Security Administration (SSA).
This Computer Matching Agreement is executed to comply with the Privacy Act of 1974 (5 U.S.C. 552a), as amended the Office of Management and Budget (OMB) Circular A-130, titled “Management of Federal Information Resources” (61 FR 6435, February 20, 1996), and OMB guidelines pertaining to computer matching (54 FR 25818, June 19, 1989).
This agreement implements the information matching provisions of sections 202 and 205 of the Social Security Act (Title 42 U.S.C. 402 and 405 (c)).
The purpose of this agreement is to establish the conditions, safeguards, and
SSA will furnish CMS with an electronic file containing Title II Claim Account Number and Title II Beneficiary Identification Code and any other information needed to accurately match the records. CMS will match the SSA file against its “Enrollment Database” system of records (formerly known as the Health Insurance Master Record), system No. 09-70-0502, and will disclose information on non-utilization of Medicare benefits by SSA recipients.
The Computer Matching Program shall become effective no sooner than 40 days after the report of the matching program is sent to OMB and Congress, or 30 days after publication in the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Survey of Single-Use Medical Device Reuse and Reprocessing in Hospitals” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Peggy Schlosburg, Office of Information Resources Management (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1223.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Transmittal of Advertising and Promotional Labeling for Drugs and Biologics for Human Use” 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 “Radioactive Drug Research Committee” 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
Bureau of Indian Affairs, Interior.
Notice.
This notice advises the public that the Bureau of Indian Affairs (BIA), with the cooperation of the Confederated Tribes of the Umatilla Indian Reservation (CTUIR), intends to gather the information necessary for preparing an Environmental Impact Statement (EIS) for the proposed lease to Wanapa Energy Center of up to 195 acres of land held in trust by the United States for the benefit of the CTUIR in Umatilla County, Oregon. The Williams Energy Marketing and Trading Company, CTUIR, the Eugene Water and Electric Board, the City of Hermiston and the Port of Umatilla intend to jointly build and operate the Wanapa Energy Center, an approximately 1,300 megawatt electric generation plant, on the property. The purpose of the proposed project is to conjointly help provide for the economic development of the CTUIR and for the power needs of the Pacific northwest. Details on the proposed project and its location are provided in the
Written comments on the scope and implementation of this proposal must arrive by November 21, 2001. The public scoping meetings will be held on November 5, 2001, and November 6, 2001, from 5 to 8 p.m.
You may mail or hand carry written comments to Philip Sanchez, Superintendent, Bureau of Indian Affairs, Umatilla Agency, P.O. Box 520, Pendleton, Oregon 97801.
The November 5, 2001, public hearing will be in Pendleton, Oregon. The November 6, 2001, public hearing will be in Hermiston, Oregon. Exact locations of the hearings will be determined at a later date and can be obtained from the
If you would like a map displaying the proposed project location, please contact Jerry L. Lauer, Natural Resource Officer, at the above Umatilla Agency address, telephone (541) 278-3790, or e-mail
Jerry L. Lauer, (541) 278-3790.
The EIS will assess the environmental consequences of BIA approval of a proposed lease between Wanapa Energy Center, the lessee, and the CTUIR, the lessor, of part of Lots 1, 2, 3, and 4, the South Half of the Southwest Quarter, Section 7, Township 5 North, Range 29 East, Willamette Meridian, Umatilla County, Oregon. The property lies in western Umatilla County near McNary Dam on the Columbia River. The parties developing the Wanapa Energy Center plan to construct and operate the facility on this property.
The proposed project has several components. They include an electrical connection at or near the Bonneville Power Administration's McNary Substation; a natural gas-fired, combined cycle, combustion turbine electric generation plant; a natural gas supply pipeline; a water supply pipeline; and a new electric power transmission line. All proposed facilities would be located within Umatilla County, Oregon.
The proposed Wanapa Energy Center would be a combustion turbine, combined cycle electric power plant with a nominal generating capacity of 1,300 megawatts. It would consist of four essentially identical combustion turbine generators, four heat recovery steam generators (HRSG) and two steam turbines. Expanding gasses from combustion would turn rotors within the turbines that are connected to electric generators. The hot gases exhausted from the combustion turbines would be used to raise steam in the HRSGs. Steam from the HRSGs would be expanded through steam turbines that drive their own electric generators. The combustion turbines would be fueled by natural gas from either the existing Williams pipeline or an existing PGT pipeline. The facility would interconnect in either case through a new, approximately ten mile gas supply lateral.
Water to generate steam and cool the steam process at the plant would be supplied from the Port of Umatilla Regional Water Supply. A recirculation cooling system employing mechanically induced draft, evaporative cooling towers would be used. Water would be added to the cooling system to compensate for evaporative losses and blowdown. Blowdown is water bled from the cooling system to limit the build-up of salts.
The proposed Wanapa Energy Center would deliver electric power to the regional power grid at BPA's McNary Substation, using a new high voltage transmission line crossing property owned by the Port of Umatilla.
As an alternative to submitting written comments regarding the scope of the EIS to the location identified in the
Comments, including names and home addresses of respondents, will be available for public review at the BIA address shown in the
This notice is published in accordance with section 1503.1 of the Council on Environmental Quality Regulations (40 CFR parts 1500 through 1508), implementing the procedural requirements of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM), Eastern States, is temporarily closing Meadowood Farm in Fairfax County, Virginia to public entry with the exception of those persons who board their horses at the boarding facility located on the property. This closure notice serves as a follow-up to the Planning Analysis/Environmental Assessment (PA/EA) whose Notice of Availability was published in the
A horse boarding facility is located on the property and will, during the closure period, continue operation under a Special Recreation Permit. No new activities will be allowed until completion of a PA/EA. The main entrance to the property leading to the office will remain open to the general public. All other access will be closed except to Federal, State and local officers and bureau employees in the scope of his or her duties, contractors, consultants and their employees engaged in official duties, members of organized rescue or fire-fighting force in performance of official duties, and others with written permission from the Bureau of Land Management.
This closure goes into effect upon acquisition of the Meadowood Farm, and will remain in effect until the State Director, Eastern States determines it is no longer needed.
Charles Bush, Meadowood Project Manager, Bureau of Land Management, Eastern States, 7450 Boston Boulevard, Springfield, Virginia 22153. (703) 440-1745.
You must not enter the closed area.
Bureau of Land Management, Interior.
Temporary closure of approximately 49,300 acres to motorized vehicle use of five selected areas in the Imperial Sand Dunes Recreation Management Area, Imperial County, California.
This temporary closure was approved September 27, 2001 and is in effect.
Bureau of Land Management, El Centro Field Office, 1661 S. 4th Street, El Centro, CA 92243.
Roxie Trost, BLM, El Centro Field Office, 1661 S. 4th Street, El Centro, CA 92243, telephone (760) 337-4400. The closure is posted in the El Centro Field Office and at places near and/or within the area to which the closure applies. Maps identifying the affected areas are available at the El Centro Field Office as well as on the Bureau of Land Management (BLM) California Web site at
This temporary closure is implemented pursuant to Title 43 Code of Federal Regulations (CFR) 8341.2(a). The closure was approved September 27, 2001 and will remain in effect until BLM completes and implements the Imperial Sand Dunes Recreation Management Plan (ISDRMP) now under preparation.
Exceptions to this closure include government vehicles conducting official business which shall be allowed inside the closed areas as authorized. Official business may include public service emergencies, resource monitoring/research, other dunes operations and management activities, and other actions authorized by BLM's El Centro Field Office Manager.
Notice of the proposed closure was published in the
Bureau of Land Management, Interior.
Notice of closure.
The temporary closure implemented November 16, 2000 (65 FR 69324) is revoked upon the publication of this notice.
Bureau of Land Management, El Centro Field Office, 1661 S. 4th Street, El Centro , CA 92243
Roxie Trost, BLM, El Centro Field Office, 1661 S. 4th Street, El Centro, CA 92243, telephone (760) 337-4400.
Revocation of temporary closure of parts of the Imperial Sand Dunes Recreation Management Area to off-highway vehicles and other vehicular use in compliance with court-approved stipulations resulting from a lawsuit involving the Endangered Species Act.
United States International Trade Commission.
October 25, 2001 at 11:00 a.m.
Room 101, 500 E Street, S.W., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agenda for future meeting: none.
2. Minutes.
3. Ratification List.
4. Inv. Nos. 731-TA-919-920 (Final)(Certain Welded Large Diameter Line Pipe from Japan and Mexico)—briefing and vote. (The Commission is currently scheduled to transmit its determination to the Secretary of Commerce on October 25, 2001; Commissioners' opinions are currently scheduled to be transmitted to the Secretary of Commerce on November 2, 2001.)
5. Outstanding action jackets: none.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, Justice.
Notice of issuance of competitive program announcement.
Notice is hereby given that the Office of Juvenile Justice and Delinquency Prevention (OJJDP), pursuant to the provisions of section 223(d) of the Juvenile Justice and Delinquency Prevention Act of 1974, as amended, 42 U.S.C. 5601
The recipient will be required to contract with Indian tribes, at a minimum, the same amount that the State of South Dakota would have been required to pass-through to tribes under section 223(a)(5)(C) of the JJDP Act ($69,995). The financial assistance provided under this program requires no matching contribution in accordance with Part C of Title II of the JJDP Act.
Applications must be received by November 21, 2001.
All application packages should be mailed or delivered to the State and Tribal Assistance Division, Office of Juvenile Justice and Delinquency Prevention, 810 Seventh Street, NW., Washington, DC 20531; 202-307-5924. (Please note that this address is different from the one listed in the 2001
Timothy S. Wight, Compliance Monitoring Coordinator, State and Tribal Assistance Division, Office of Juvenile Justice and Delinquency Prevention, 810 Seventh Street, NW., Washington, DC 20531, 202-307-5924, e-mail:
The JJDP Act, as amended through 1992, establishes four core protections. The core protections are the deinstitutionalization of status offenders, removal of juveniles from adult jails and lockups, separation of juveniles and adults in institutions, and reduction of disproportionate minority confinement, where it exists. Meeting the core protections is essential to creating a fair and consistent juvenile
Pursuant to section 223(d) of the JJDP Act, if a State chooses not to submit a Formula Grants Program plan, fails to submit a plan, or submits a plan which does not meet the requirements of the JJDP Act, the OJJDP Administrator shall endeavor to make the Formula Grants Program fund allotment, under section 222(a) of the JJDP Act, available to private nonprofit agencies within the State. The funds must be used solely for the purpose of achieving compliance with the following JJDP Act core protections:
1. Section 223(a)(12)(A) requires that juveniles who are charged with or who have committed offenses that would not be criminal if committed by an adult or offenses (other than an offense that constitutes a violation of a valid court order or a violation of section 922(x) of Title 18 or a similar State law), or alien juveniles in custody, or such nonoffenders as dependent or neglected children, shall not be placed in secure detention facilities or secure correctional facilities.
2. Section 223(a)(13) provides that juveniles alleged to be or found to be delinquent, and those within the purview of section 223(a)(12)(A) above shall not be detained or confined in any institution in which they have contact with adult persons incarcerated because they have been convicted of a crime or are awaiting trial on criminal charges or with the part-time or full-time security staff (including management) or direct-care staff of a (collocated) jail or lockup for adults.
3. Section 223(a)(14) provides that no juvenile shall be detained or confined in any jail or lockup for adults, except that the Administrator shall promulgate regulations which make exceptions with regard to the detention of juveniles accused of nonstatus offenses who are awaiting an initial court appearance pursuant to an enforceable State law requiring such appearances within 24 hours after being taken into custody (excluding weekends and holidays) provided that such exceptions are limited to areas that are in compliance with section 223(a)(13), above; and
a. (1) Are outside a Standard Metropolitan Statistical Area; and
(2) Have no existing acceptable alternative placement available; or
b. Are located where conditions of distance to be traveled or the lack of highway, road, or other ground transportation do not allow for court appearances within 24 hours, so that a brief (not to exceed 48 hours) delay is excusable; or
c. Are located where conditions of safety exist (such as severely adverse, life-threatening weather conditions that do not allow for reasonably safe travel), in which case the time for an appearance may be delayed until 24 hours after the time that such conditions allow for reasonably safe travel.
For further information and explanation of regulatory exceptions to the provisions of section 223(a)(12)(A), (13), and (14), see the OJJDP Consolidated Regulation, 28 CFR Part 31, § 31.303 (c-e) substantive requirements. Copies of the Consolidated Regulation may be obtained by contacting the Office of Juvenile Justice and Delinquency Prevention at 202-307-5924.
South Dakota historically has not been able to successfully address the core protections of the JJDP Act because of State laws that sanction violations, a lack of local policies that promote the coordination of available resources, and a limited number of alternative resources available to communities. South Dakota Codified Law 26-7A-26 permits apparent, alleged, or adjudicated children in need of supervision
Because of the State's inability to address the core protections of the JJDP Act, the State of South Dakota did not submit a Formula Grants Program plan for the FY 1999 and FY 2000 Formula Grants Program allocations.
In accordance with section 223(d) of the JJDP Act, the goal of this program is to assist South Dakota in developing a range of secure and nonsecure alternatives and revising associated policies to ensure the core protections of section 223(a)(12)(A), (13) and (14) are met.
Local jurisdictions may be using secure facilities to detain or confine juveniles in a manner inconsistent with section 223(a)(12)(A), (13), and (14). To address this, the following objectives would be met:
1. Develop local and statewide policies regarding the issues of juveniles in secure confinement consistent with section 223(a)(13) and (14) and the secure confinement of status offender juveniles in violation of section 223(a)(12)(A) of the JJDP Act.
2. Increase coordination and cooperation among juvenile justice system agencies including schools, law enforcement, prosecution, the judiciary, jails, corrections, public and private service providers, and local public interest groups. Lack of coordination and cooperation often contributes to placement of juveniles in jails and lockups in violation of section 223(a)(12)(A), (13), and (14) of the JJDP Act.
3. Create a flexible network of services and programs that is responsive to local jurisdictions' needs and capabilities. This network should focus on jurisdictions with the most difficult barriers to meeting the core protections of the JJDP Act.
4. Create alternative services that can be sustained over time with local resources including, but not limited to:
a. Availability of appropriate secure juvenile facilities for the detention of juvenile criminal-type offenders.
b. Intensive supervision in a child's home as a placement alternative and use of home detention, including electronic monitoring, when safe and appropriate.
c. Emergency foster care, shelter care, group care, and independent living arrangements.
d. Crisis intervention services, short-term residential crisis intervention programs, and nonsecure holdovers that can be used for conflict mediation, emergency holding, and provision of emergency attention for youth with physical or emotional problems.
OJJDP will select one applicant from nonprofit agencies operating Statewide in the State of South Dakota and award a $1,349,000 cooperative agreement for a 2-year project period.
OJJDP invites applications from local public and private nonprofit agencies operating statewide in the State of South Dakota. When submitting joint applications with more than one organization, the parties must set forth their relationships in the application. As a general rule, organizations that describe their working relationship as primarily cooperative or collaborative when developing products and delivering services will be considered coapplicants. In the event of a coapplicant submission, one coapplicant must be designated the payee and, as such, will receive and disburse project funds and be responsible for the supervision and coordination of the activities of the other coapplicant. Under this arrangement, each organization would agree to be jointly and separately responsible for all project funds and services. Each coapplicant must sign Standard Form-424, Application for Federal Assistance, and indicate its acceptance of the conditions of joint and separate responsibility with the other coapplicant.
Applicants will be evaluated and rated by a peer review panel according to the criteria outlined below.
The applicant must demonstrate a clear understanding of the core protections of the JJDP Act and the manner in which the core protections are currently being addressed or not addressed in jurisdictions throughout the State.
The applicant must clearly outline the specific goals and objectives to be achieved by the project. Simply restating the goals and objectives given in this solicitation is not adequate.
The project design must describe how the applicant will have an effect on the following:
1. State laws impacting the placement of juveniles in adult jails and lockups and status offenders and nonoffenders in secure detention or correctional facilities and the issues surrounding the removal of such juveniles from the facilities.
2. State and local jurisdictions' compliance in relation to the measurable core protections of the JJDP Act where the applicant is proposing to contract for the development of alternative placements to adult jails and lockups.
3. State legislative, judicial, and executive branch activities related to supervision and protection of status offenders and nonoffenders and jail removal.
4. The ability of the State and local jurisdictions to meet the core protections of the JJDP Act by providing community-based alternative placements to adult jails and lockups.
5. Establishment and maintenance of a working relationship between the applicant and the South Dakota Department of Corrections in order to coordinate efforts and enhance the project's statewide efforts to meet the JJDP Act core protections.
Applicants must demonstrate that they are eligible to compete for an award on the basis of eligibility criteria established in this solicitation.
1. Organizational Experience. Applicants must concisely describe their experience with respect to the eligibility criteria. Applicants must demonstrate how their experience and capabilities will enable them to achieve the goals and objectives of this initiative.
2. Capability of Working With Other Organizations in the State. Applicants must demonstrate that they have discussed this program with local and State elected public officials or their staffs; the South Dakota Department of Corrections; key decisionmakers in the juvenile justice system such as juvenile court judges, associations of those involved in juvenile justice, the boards of public and private youth service providers; and other groups whose cooperation or participation is essential to the success of the program. The applicant must describe how it will be able to obtain the aforementioned cooperation or participation.
3. Financial Capability. OJP procedures require each private nonprofit applicant to demonstrate that its organization has or can establish fiscal controls and accounting procedures that ensure that Federal funds available under this announcement are disbursed and accounted for properly.
The proposed 24-month budget must be complete, detailed, reasonable, allowable, and cost effective in relation to the activities to be undertaken.
The narrative portion of this application (excluding forms, assurances, and appendixes), must not exceed 25 pages and must be submitted on 8
This project will be funded as a cooperative agreement for a 2-year budget and project period.
A cooperative agreement in the amount of $1,349,000 is available for the 2-year budget and project period.
For this program, the CFDA number, which is required on Standard Form 424 is 16.541. This form and other required forms and instructions are included in the 2001
To encourage better coordination among Federal agencies in addressing State and local needs, the U.S. Department of Justice (DOJ) is requiring applicants to provide information on the following: (1) Active Federal grant award(s) supporting this or related efforts, including awards from DOJ; (2) any pending application(s) for Federal funds for this or related efforts; and (3) plans for coordinating any funds described in items (1) or (2) with the funding sought by this application. For each Federal award, applicants must include the program or project title, the Federal grantor agency, the amount of the award, and a brief description of its purpose.
The term “related efforts” is defined for these purposes as one of the following:
1. Efforts for the same purpose (i.e., the proposed award would supplement, expand, complement, or continue activities funded with other Federal grants).
2. Another phase or component of the same program or project (e.g., to
3. Services of some kind (e.g., technical assistance, research, or evaluation) to the program or project described in the application.
All application packages must be mailed or delivered to the State and Tribal Assistance Division, Office of Juvenile Justice and Delinquency Prevention, 810 Seventh Street, NW., Washington, DC 20531; 202-307-5924. (Note that this address is different from the one listed in the 2001
Applicants are responsible for ensuring that the original and five copies of the application package are received by 5 p.m. ET on November 21, 2001.
For further information, contact Timothy S. Wight, Compliance Monitoring Coordinator, State and Tribal Assistance Division, 202-307-5924, or send an e-mail inquiry to WightT@ojp.usdoj.gov.
Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, Justice.
Notice of issuance of competitive program announcement.
Notice is hereby given that the Office of Juvenile Justice and Delinquency Prevention (OJJDP), pursuant to the provisions of section 223(d) of the Juvenile Justice and Delinquency Prevention Act of 1974, as amended, 42 U.S.C. 5601
The recipient will be required to contract with Indian tribes, at a minimum, the same amount that the State of Wyoming would have been required to pass-through to tribes under section 223(a)(5)(C) of the JJDP Act ($23,049). The financial assistance provided under this program requires no matching contribution in accordance with Part C of Title II of the JJDP Act.
Applications must be received by November 21, 2001.
All application packages should be mailed or delivered to the State and Tribal Assistance Division, Office of Juvenile Justice and Delinquency Prevention, 810 Seventh Street, NW., Washington, DC 20531; 202-307-5924. (Please note that this address is different from the one listed in the 2001
Timothy S. Wight, Compliance Monitoring Coordinator, State and Tribal Assistance Division, Office of Juvenile Justice and Delinquency Prevention, 810 Seventh Street, NW., Washington, DC 20531, 202-307-5924, e-mail:
The JJDP Act, as amended through 1992, establishes four core protections. The core protections are the deinstitutionalization of status offenders, removal of juveniles from adult jails and lockups, separation of juveniles and adults in institutions, and reduction of disproportionate minority confinement, where it exists. Meeting the core protections is essential to creating a fair and consistent juvenile justice system that advances an important goal of the JJDP Act: To increase the effectiveness of juvenile delinquency prevention and control. The purpose of this program is to assist Wyoming in developing a range of secure and nonsecure alternatives and revising associated policies to ensure that the core protections are met.
Pursuant to section 223(d) of the JJDP Act, if a State chooses not to submit a Formula Grants Program plan, fails to submit a plan, or submits a plan which does not meet the requirements of the JJDP Act, the OJJDP Administrator shall endeavor to make the Formula Grants Program fund allotment, under section 222(a) of the JJDP Act, available to private nonprofit agencies within the State. The funds must be used solely for the purpose of achieving compliance with the following JJDP Act core protections:
1. Section 223(a)(12)(A) requires that juveniles who are charged with or who have committed offenses that would not be criminal if committed by an adult or offenses (other than an offense that constitutes a violation of a valid court order or a violation of section 922(x) of Title 18 or a similar State law), or alien juveniles in custody, or such nonoffenders as dependent or neglected children, shall not be placed in secure
2. Section 223(a)(13) provides that juveniles alleged to be or found to be delinquent, and those within the purview of section 223(a)(12)(A) above shall not be detained or confined in any institution in which they have contact with adult persons incarcerated because they have been convicted of a crime or are awaiting trial on criminal charges or with the part-time or full-time security staff (including management) or direct-care staff of a (collocated) jail or lockup for adults.
3. Section 223(a)(14) provides that no juvenile shall be detained or confined in any jail or lockup for adults, except that the Administrator shall promulgate regulations which make exceptions with regard to the detention of juveniles accused of nonstatus offenses who are awaiting an initial court appearance pursuant to an enforceable State law requiring such appearances within 24 hours after being taken into custody (excluding weekends and holidays) provided that such exceptions are limited to areas that are in compliance with section 223(a)(13), above; and
a. (1) Are outside a Standard Metropolitan Statistical Area; and
(2) Have no existing acceptable alternative placement available; or
b. Are located where conditions of distance to be traveled or the lack of highway, road, or other ground transportation do not allow for court appearances within 24 hours, so that a brief (not to exceed 48 hours) delay is excusable; or
c. Are located where conditions of safety exist (such as severely adverse, life-threatening weather conditions that do not allow for reasonably safe travel), in which case the time for an appearance may be delayed until 24 hours after the time that such conditions allow for reasonably safe travel.
For further information and explanation of regulatory exceptions to the provisions of section 223(a)(12)(A), (13), and (14), see the OJJDP Consolidated Regulation, 28 CFR part 31, § 31.303 (c-e) substantive requirements. Copies of the Consolidated Regulation may be obtained by contacting the Office of Juvenile Justice and Delinquency Prevention at 202-307-5924.
Wyoming historically has not been able to successfully address the core protections of the JJDP Act due to State laws that sanction violations, a lack of local policies that promote the coordination of available resources, and a limited number of alternative resources available to communities. Due to the State's inability to address the core protections of the JJDP Act, the State of Wyoming did not submit a Formula Grants Program plan for the FY 1998, FY 1999 and FY 2000 Formula Grants program allocations.
In accordance with section 223(d) of the JJDP Act, the goal of this program is to assist Wyoming in developing a range of secure and nonsecure alternatives and revising associated policies to ensure the core protections of section 223(a)(12)(A), (13) and (14) are met.
Local jurisdictions may be using secure facilities to detain or confine juveniles in a manner inconsistent with section 223(a)(12)(A), (13), and (14). To address this, the following objectives would be met:
1. Develop local and statewide policies regarding the issues of juveniles in secure confinement consistent with section 223(a)(13) and (14) and the secure confinement of status offender juveniles in violation of section 223(a)(12)(A) of the JJDP Act.
2. Increase coordination and cooperation among juvenile justice system agencies including schools, law enforcement, prosecution, the judiciary, jails, corrections, public and private service providers, and local public interest groups. Lack of coordination and cooperation often contributes to placement of juveniles in jails and lockups in violation of section 223(a)(12)(A), (13), and (14) of the JJDP Act.
3. Create a flexible network of services and programs that is responsive to local jurisdictions' needs and capabilities. This network should focus on jurisdictions with the most difficult barriers to meeting the core protections of the JJDP Act.
4. Create alternative services that can be sustained over time with local resources including, but not limited to:
a. Availability of appropriate secure juvenile facilities for the detention of juvenile criminal-type offenders.
b. Intensive supervision in a child's home as a placement alternative and use of home detention, including electronic monitoring, when safe and appropriate.
c. Emergency foster care, shelter care, group care, and independent living arrangements.
d. Crisis intervention services, short-term residential crisis intervention programs, and nonsecure holdovers that can be used for conflict mediation, emergency holding, and provision of emergency attention for youth with physical or emotional problems.
OJJDP will select one applicant from nonprofit agencies operating Statewide in the State of Wyoming and award a $1,851,050 cooperative agreement for a 2-year project period.
OJJDP invites applications from local public and private nonprofit agencies operating statewide in the State of Wyoming. When submitting joint applications with more than one organization, the parties must set forth their relationships in the application. As a general rule, organizations that describe their working relationship as primarily cooperative or collaborative when developing products and delivering services will be considered coapplicants. In the event of a coapplicant submission, one coapplicant must be designated the payee and, as such, will receive and disburse project funds and be responsible for the supervision and coordination of the activities of the other coapplicant. Under this arrangement, each organization would agree to be jointly and separately responsible for all project funds and services. Each coapplicant must sign Standard Form 424, Application for Federal Assistance, and indicate its acceptance of the conditions of joint and separate responsibility with the other coapplicant.
Applicants will be evaluated and rated by a peer review panel according to the criteria outlined below.
The applicant must demonstrate a clear understanding of the core protections of the JJDP Act and the manner in which the core protections are currently being addressed or not addressed in jurisdictions throughout the State.
The applicant must clearly outline the specific goals and objectives to be achieved by the project. Simply restating the goals and objectives given in this solicitation is not adequate.
The project design must describe how the applicant will have an effect on the following:
1. State laws impacting the placement of juveniles in adult jails and lockups and status offenders and nonoffenders
2. State and local jurisdictions' compliance in relation to the measurable core protections of the JJDP Act where the applicant is proposing to contract for the development of alternative placements to adult jails and lockups.
3. State legislative, judicial, and executive branch activities related to supervision and protection of status offenders and nonoffenders and jail removal.
4. The ability of the State and local jurisdictions to meet the core protections of the JJDP Act by providing community-based alternative placements to adult jails and lockups.
5. Establishment and maintenance of a working relationship between the applicant and the Wyoming State Advisory Group and the Wyoming Department of Family Services, Division of Juvenile Services in order to coordinate efforts and enhance the project's statewide efforts to meet the JJDP Act core protections.
Applicants must demonstrate that they are eligible to compete for an award on the basis of eligibility criteria established in this solicitation.
1. Organizational Experience.
Applicants must concisely describe their experience with respect to the eligibility criteria. Applicants must demonstrate how their experience and capabilities will enable them to achieve the goals and objectives of this initiative.
2. Capability of Working With Other Organizations in the State.
Applicants must demonstrate that they have discussed this program with local and State elected public officials or their staffs; the Wyoming State Advisory Group; the Wyoming Department of Family Services, Division of Juvenile Services; key decisionmakers in the juvenile justice system such as juvenile court judges, associations of those involved in juvenile justice, the boards of public and private youth service providers; and other groups whose cooperation or participation is essential to the success of the program. The applicant must describe how it will be able to obtain the aforementioned cooperation or participation.
3. Financial Capability.
OJP procedures require each private nonprofit applicant to demonstrate that its organization has or can establish fiscal controls and accounting procedures that ensure that Federal funds available under this announcement are disbursed and accounted for properly.
The proposed 24-month budget must be complete, detailed, reasonable, allowable, and cost effective in relation to the activities to be undertaken.
The narrative portion of this application (excluding forms, assurances, and appendixes), must not exceed 25 pages and must be submitted on 8
This project will be funded as a cooperative agreement for a 2-year budget and project period.
A cooperative agreement in the amount of $1,851,050 is available for the 2-year budget and project period.
For this program, the CFDA number, which is required on Standard Form 424 is 16.541. This form and other required forms and instructions are included in the 2001
To encourage better coordination among Federal agencies in addressing State and local needs, the U.S. Department of Justice (DOJ) is requiring applicants to provide information on the following: (1) Active Federal grant award(s) supporting this or related efforts, including awards from DOJ; (2) any pending application(s) for Federal funds for this or related efforts; and (3) plans for coordinating any funds described in items (1) or (2) with the funding sought by this application. For each Federal award, applicants must include the program or project title, the Federal grantor agency, the amount of the award, and a brief description of its purpose.
The term “related efforts” is defined for these purposes as one of the following:
1. Efforts for the same purpose (i.e., the proposed award would supplement, expand, complement, or continue activities funded with other Federal grants).
2. Another phase or component of the same program or project (e.g., to implement a planning effort funded by other Federal funds or to provide a substance abuse treatment or education component within a criminal justice project).
3. Services of some kind (e.g., technical assistance, research, or evaluation) to the program or project described in the application.
All application packages must be mailed or delivered to the State and Tribal Assistance Division, Office of Juvenile Justice and Delinquency Prevention, 810 Seventh Street, NW., Washington, DC 20531; 202-307-5924. (Note that this address is different from the one listed in the 2001
Applicants are responsible for ensuring that the original and five copies of the application package are received by 5 p.m. ET on November 21, 2001.
For further information, contact Timothy S. Wight, Compliance Monitoring Coordinator, State and Tribal Assistance Division, 202-307-5924, or send an e-mail inquiry to
Notice is hereby given of the date and location of the next meeting of the National Advisory Committee on Occupational Safety and Health (NACOSH), established under section 7(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 656) to advise the Secretary of Labor and the Secretary of Health and Human Services on matters relating to the administration of the Act. NACOSH will hold a meeting on November 28, 2001, in Room 283 of the Hall of States located at 444 N. Capitol Street, NW., Washington, DC. The meeting is open to the public and will begin at 9 a.m. and last until approximately 4 p.m.
The meeting will begin with an overview of activities of the Occupational Safety and Health Administration (OSHA) and the National Institute for Occupational Safety and Health (NIOSH). Other agenda items include: a presentation on OSHA and NIOSH's response to the terrorists attacks; ergonomics issues; recordkeeping and outreach.
Written data, views or comments for consideration by the committee may be submitted, preferably with 20 copies, to J. Catherine Sutter at the address provided below. Any such submissions received prior to the meeting will be provided to the members of the committee and will be included in the record of the meeting. Because of the need to cover a wide variety of subjects in a short period of time, there is usually insufficient time on the agenda for members of the public to address the committee orally. However, any such requests will be considered by the Chair who will determine whether or not time permits. Any request to make an oral presentation should state the amount of time desired, the capacity in which the person would appear, and a brief outline of the content of the presentation. Individuals with disabilities who need special accommodations should contact Veneta Chatmon (phone: 202-693-1912; FAX: 202-693-1634) one week before the meeting.
An official record of the meeting will be available for public inspection in the OSHA Technical Data Center (TDC) located in Room N2625 of the Department of Labor Building (202-693-2350). For additional information contact: J. Catherine Sutter, Occupational Safety and Health Administration (OSHA); Room N-3641, 200 Constitution Avenue NW., Washington, DC 20210 (phone: 202-693-1933; FAX: 202-693-1641; e-mail Catherine.Sutter@osha.gov); or check the National Advisory Committee on Occupational Safety and Health information pages located at www.osha.gov.
Pension and Welfare Benefits Administration, Labor.
Grant of individual exemptions.
This document contains exemptions issued by the Department of Labor (the Department) 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).
Notices were published in the
The notices of proposed exemption were issued and the exemptions are being granted solely by the Department because, 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 proposed to the Secretary of Labor.
In accordance with section 408(a) of the Act and/or section 4975(c)(2) of the Code and the procedures set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990) and based upon the entire record, the Department makes the following findings:
(a) The exemptions are administratively feasible;
(b) They are in the interests of the plans and their participants and beneficiaries; and
(c) They are protective of the rights of the participants and beneficiaries of the plans.
The restrictions of sections 406(a), 406(b)(1) and (b)(2) and section 407(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 (E) of the Code, shall not apply, effective November 30, 2000, to (1) the receipt, by the Plan, of contingent value obligations (the CVOs), as a result of the Plan's ownership of certain common stock (the Florida Progress Stock) in Florida Progress Corporation (Florida Progress), the Plan sponsor;
(2) the continued holding of the CVOs by the Plan; and the (3) potential resale of the CVOs by the Plan to Progress Energy, Inc. (Progress Energy), a party in interest with respect to the Plan.
This exemption is subject to the following conditions:
(a) The Plan received one CVO for each share of Florida Progress Stock on the effective date of the share exchange between Florida Progress and CP&L Energy, Inc. (CP&L Energy), the predecessor entity to Progress Energy.
(b) All Florida Progress shareholders, including Plan participants, received the CVOs in the same manner, so that the Plan participants and beneficiaries were not in a less advantageous position than other Florida Progress shareholders.
(c) The Plan's receipt of the CVOs, including other share exchange
(d) Salomon Smith Barney, Inc. (Salomon Smith Barney) advised Florida Progress that the consideration to be received by Florida Progress shareholders in exchange for their shares of Florida Progress Stock was “fair,” from a financial point of view.
(e) The Plan did not pay any fees or commissions in connection with the acquisition of the CVOs, nor will it pay any fees or commissions in connection with the holding or potential sale of the CVOs to Progress Energy.
(f) An independent fiduciary, United States Trust Company, N.A.,
(1) Has overseen, and continues to oversee, the Plan's holding or disposition of any CVOs for which the Plan does not receive any investment direction and determines whether it is appropriate for the Plan to sell the CVOs; and
(2) Retains the services of an independent appraiser to calculate the price at which the CVOs are sold to Progress Energy in order to ensure that adequate consideration is received.
(g) Plan participants have the same rights and flexibility as unrelated parties and they may sell their CVOs at any time.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption published on July 30, 2001 at 66 FR 39363.
During the comment period, the Department received one written comment with respect to the proposed exemption and no requests for a public hearing. The comment was submitted by the Plan's legal counsel and is intended to clarify the Summary of Facts and Representations (the Summary) of the proposal in two areas. First, in Representation 3 of the Summary, the third sentence of the initial paragraph states, at 39363, that at the time of the share exchange transaction, Progress Energy, then known as CP&L Energy, Inc., operated through three subsidiaries, CP&L, North Carolina Power & Gas, Inc. and Interpath Communications, Inc. The applicant suggests that this sentence be revised to read as follows to correct certain minor inaccuracies:
At the time of the share exchange transaction described in this notice of proposed exemption, Progress Energy, then known as CP&L Energy, Inc., operated primarily through three major subsidiaries, CP&L, North Carolina Power & Gas, Inc. and Interpath Communications, Inc. (ICI).
Second, in Representation 12 of the proposed exemption, the last sentence of the paragraph states, at 39366, that Salomon Smith Barney advised Florida Progress, in an opinion letter dated July 5, 2000 to the company's Board of Directors, that due to the low trading volume in the “when, as and if issued” market, a mass sale of the CVOs by the Plan would likely depress the value of the CVOs, thereby adversely affecting the interests of the Plan participants. The applicant requests that the phrase “in an opinion letter dated July 5, 2000 to the company's Board of Directors” be deleted since the letter related solely to the fairness of the corporate transaction to the Florida Progress shareholders from a financial point of view, whereas the referenced advice was given separately. Therefore, the applicant recommends that the sentence be revised to read as follows:
However, Salomon Smith Barney advised Florida Progress that due to the low trading volume in the “when, as and if issued” market, a mass sale of the CVOs by the plan would likely affect the value of the CVOs, thereby adversely affecting the interests of the Plan participants.
In response to the applicant's comment letter, the Department has noted the foregoing changes to the Summary. For further information regarding the applicant's comment and other matters discussed herein, interested persons are encouraged to obtain copies of the exemption application file (Exemption Application No. D-10953) the Department is maintaining in this case. The complete application file, as well as all supplemental submissions received by the Department, are made available for public inspection in the Public Disclosure Room of the Pension and Welfare Benefits Administration, Room N-1513, 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 applicant's comment, the Department has decided to grant the exemption.
Ms. Jan D. Broady of the Department, telephone (202) 219-8881. (This is not a toll-free number.)
The restrictions of section 406(a)(1)(A) through (D) and the sanctions resulting from the application of section 4975 of the Code by reason of section 4975(c)(1)(A) through (D),
(a) IFS, as Named Fiduciary of the Diplomat Account, is an investment adviser registered under the Investment Advisers Act of 1940, as amended, (the Advisers Act) that has, as of the last day of its most recent fiscal year, shareholders' equity or partners' equity, as defined in Section III (h), below, in excess of $750,000;
(b) At the time of the transaction, as defined in Section III (i), below, the party in interest or its affiliate, as defined in Section III (a), below, does not have, and during the immediately preceding one (1) year has not exercised, the authority to—
(1) Appoint or terminate the Named Fiduciary as a manager of the Diplomat Account, or
(2) Negotiate the terms of the management agreement with the Named Fiduciary (including renewals or modifications thereof) on behalf of the Fund;
(c) The transaction is not described in—
(1) Prohibited Transaction Class Exemption 81-6 (PTCE 81-6)
(2) Prohibited Transaction Class Exemption 83-1 (PTCE 83-1)
(3) Prohibited Transaction Class Exemption 82-87 (PTCE 82-87)
(d) The terms of the transaction are negotiated on behalf of the Diplomat Account under the authority and general direction of the Named Fiduciary, and either the Named Fiduciary, or (so long as the Named Fiduciary retains full fiduciary responsibility with respect to the transaction) a property manager acting in accordance with written guidelines established and administered by the Named Fiduciary, makes the decision on behalf of the Diplomat Account to enter into the transaction, provided that the transaction is not part of an agreement, arrangement, or understanding designed to benefit a party in interest;
(e) The party in interest dealing with the Diplomat Account is neither the Named Fiduciary nor a person related to the Named Fiduciary, as defined in Section III(f), below;
(f) At the time the transaction is entered into, and at the time of any subsequent renewal or modification thereof that requires the consent of the Named Fiduciary, the terms of the transaction are at least as favorable to the Diplomat Account as the terms generally available in arm's length transactions between unrelated parties;
(g) Neither the Named Fiduciary nor any affiliate thereof, as defined in Section III(b), below, nor any owner, direct or indirect, of a 5 percent (5%) or more interest in the Named Fiduciary is a person who, within the ten (10) years immediately preceding the transaction, has been either convicted or released from imprisonment, whichever is later, as a result of:
(1) Any felony involving abuse or misuse of such person's employee benefit plan position or employment, or position or employment with a labor organization;
(2) Any felony arising out of the conduct of the business of a broker, dealer, investment adviser, bank, insurance company, or fiduciary;
(3) Income tax evasion;
(4) Any felony involving the larceny, theft, robbery, extortion, forgery, counterfeiting, fraudulent concealment, embezzlement, fraudulent conversion, or misappropriation of funds or securities; conspiracy or attempt to commit any such crimes or a crime in which any of the foregoing crimes is an element; or
(5) Any other crimes described in section 411 of the Act.
For purposes of this Section I(g), a person shall be deemed to have been “convicted” from the date of the judgment of the trial court, regardless of whether the judgment remains under appeal.
The restrictions of sections 406(a)(1)(A) through (D) and 406(b)(1) and 406(b)(2) 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 (E) of the Code, shall not apply, effective from November 3, 2000, to the furnishing of services, facilities, and any goods incidental thereto by a place of public accommodation owned by the Diplomat Account managed by IFS, acting as the Named Fiduciary, to a party in interest with respect to the Fund, if the services, facilities, and incidental goods are furnished on a comparable basis to the general public.
(a) For purposes of Section I(b), above, of this exemption, an “affiliate” of a person means —
(1) any person directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with the person,
(2) any corporation, partnership, trust, or unincorporated enterprise of which such person is an officer, director, 5 percent (5%) or more partner, or employee (but only if the employer of such employee is the plan sponsor), and
(3) any director of the person or any employee of the person who is a highly compensated employee, as described in section 4975(e)(2)(H) of the Code, or who has direct or indirect authority, responsibility, or control regarding the custody, management, or disposition of plan assets. A named fiduciary (within the meaning of section 402(a)(2) of the Act) of a plan, and an employer any of whose employees are covered by the plan will also be considered affiliates with respect to each other for purposes of Section I(b) if such employer or an affiliate of such employer has the authority, alone or shared with others, to appoint or terminate the named fiduciary or otherwise negotiate the terms of the named fiduciary's employment agreement.
(b) For purposes of Section I(g), above, of this exemption, an “affiliate” of a person means —
(1) any person directly or indirectly through one or more intermediaries, controlling, controlled by, or under common control with the person,
(2) any director of, relative of, or partner in, any such person,
(3) any corporation, partnership, trust, or unincorporated enterprise of which such person is an officer, director, or a 5 percent (5%) or more partner or owner, and
(4) any employee or officer of the person who —
(A) Is a highly compensated employee (as described in section 4975(e)(2)(H) of the Code) or officer (earning 10 percent (10%) or more of the yearly wages of such person) or
(B) Has direct or indirect authority, responsibility or control regarding the custody, management, or disposition of Fund assets.
(c) The term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual.
(d) The term “goods” includes all things which are movable or which are fixtures used by the Diplomat Account but does not include securities, commodities, commodities futures, money, documents, instruments, accounts, chattel paper, contract rights, and any other property, tangible or intangible, which, under the relevant facts and circumstances, is held primarily for investment.
(e) The term “party in interest” means a person described in section 3(14) of the Act and includes a “disqualified person,” as defined in section 4975(e)(2) of the Code.
(f) The Named Fiduciary is “related” to a party in interest for purposes of Section I(e), above, of this exemption, if the party in interest (or a person controlling, or controlled by, the party in interest) owns a 5 percent (5%) or more interest in the Named Fiduciary, or if the Named Fiduciary (or a person controlling, or controlled by, the Named Fiduciary) owns a 5 percent (5%) or more interest in the party in interest. For purposes of this definition:
(1) The term “interest” means with respect to ownership of an entity —
(A) The combined voting power of all classes of stock entitled to vote or the total value of the shares of all classes of stock of the entity if the entity is a corporation,
(B) The capital interest or the profits interest of the entity if the entity is a partnership; or
(C) The beneficial interest of the entity if the entity is a trust or unincorporated enterprise; and
(2) A person is considered to own an interest held in any capacity if the person has or shares the authority —
(A) To exercise any voting rights, or to direct some other person to exercise the voting rights relating to such interest, or
(B) To dispose or to direct the disposition of such interest.
(g) The term “relative” means a relative as that term is defined in section 3(15) of the Act, or a brother, sister, or a spouse of a brother or sister.
(h) For purposes of Section I(a) of this exemption, the term “shareholders’ equity” or “partners’ equity” means the equity shown in the most recent balance sheet prepared within the two (2) years immediately preceding a transaction undertaken pursuant to this exemption, in accordance with generally accepted accounting principles.
(i) The “time” as of which any transaction occurs is the date upon which the transaction is entered into. In addition, in the case of a transaction that is continuing, the transaction shall be deemed to occur until it is terminated. If any transaction is entered into on or after the effective date of this exemption, or if a renewal that requires the consent of the Named Fiduciary occurs on or after the effective date of this exemption, and the requirements of this exemption are satisfied at the time the transaction is entered into or renewed, then the requirements will be deemed to continue to be satisfied thereafter with respect to the transaction. Nothing in this subsection shall be construed as exempting a transaction which becomes a transaction described in section 406 of the Act or section 4975 of the Code while the transaction is continuing, unless the conditions of this exemption were met either at the time the transaction was entered into or at the time the transaction would have become prohibited but for this exemption.
The Diplomat Resort and Country Club (the Property) is located in Hollywood and Hallandale, Florida. Constructed in the late 1950's, the Property functioned as a premier hotel and resort in the decades from the 1950's to the 1980's. During this period, the Property was in the possession of the family of Samuel Friedland. After the death of Mr. Friedland in 1985, his son-in-law, Irving Cowan, bought out the interests in the Property held by other family members. In 1987, a consortium of trade union pension funds, led by the Union Labor Life Insurance Company (ULLICO) loaned Mr. Cowan $44 million to continue operation of the Property. In 1991, ULLICO foreclosed on the loan to Mr. Cowan and, as a result, acquired title to the Property through a subsidiary. In 1991, the hotel on the Property was closed for renovations and did not reopen. In 1997, ULLICO placed the entire Property on the market for sale.
When ULLICO offered the Property for sale, it is represented that the Trustees of the Fund were interested in acquiring it as an investment for the Fund. However, a non-negotiable condition of the sale offer excluded assets of any employee benefit fund subject to the Act from being used to purchase the Property, and prevented the Fund from buying the Property. As a result of the offer to sell the Property, it is represented that ULLICO's subsidiary received seven or eight bids from prospective purchasers, including the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (the Union).
As the successful bidder on the Property, the Union acquired title to the Property on October 1, 1997. In this regard, a wholly-owned subsidiary of the Union, the Diplomat Properties Limited Partnership (the Partnership), purchased the Property from ULLICO's wholly-owned subsidiary for a purchase price of $40 million, plus closing costs and related expenses. The Partnership financed the purchase of the Property by obtaining a loan from National City Bank of Cleveland, Ohio (NCB) which was guaranteed by the Union and collateralized by Union assets consisting of cash, cash equivalents, and securities held by NCB in a custodial account.
On October 3, 1997, the Department received an exemption application (D-10514) from the Fund. The transaction for which relief was requested was initially described in the application, as the purchase by the Fund from the Union of title to the Property for $40 million, plus the closing costs and related expenses incurred by the Union in purchasing the Property from ULLICO's subsidiary. Upon submission of application D-10514, the Fund had not yet consummated the transaction, but planned to close the deal within a few days of filing the application with the Department. Accordingly, the Fund requested retroactive relief.
The closing occurred on October 9, 1997. Specifically, the transactions involved in the closing included: (a) The transfer by the Union to the Fund of the Union's limited partnership interests in the Partnership, the sole asset of which was the Property, and (b) the transfer to the Fund of 100 percent (100%) of the stock in Diplomat Properties, Inc., the corporate general partner of the Partnership (the General Partner), which was owned by the Union. In consideration of these transfers, the Fund made a capital contribution to the Partnership in the amount of $40 million, plus reasonable costs incurred by the Union in purchasing the Property, on behalf of the Partnership, from ULLICO's subsidiary. On October 10, 1997, the Fund's capital contribution to the Partnership was used to pay off the loan from NCB that the Union, on behalf of the Partnership, had incurred in acquiring the Property. Once the loan was paid off, Union assets were no longer pledged as collateral for the loan, and the Union was released from its guaranty.
During the eight (8) months from October 3, 1997, when application D-10514 was filed until May 29, 1998, when the proposed exemption was published, the Department, in considering the application, received a number of submissions from the Fund, in response to questions from the Department about the details of the transactions and the appropriateness of the acquisition of the Property by the Fund. Representations were made that the $40 million purchase price paid by the Fund would constitute less than 2% of the assets of the Fund (approximately $3.1 billion in 1997). Application D-10514 included several reports prepared by Chadwick, Saylor & Co., Inc. (CSC), an investment advisor registered under the Investment Advisors Act of 1940. In this regard, CSC represented that it was independent and qualified to serve as the independent fiduciary acting on behalf of the Fund with regard to the acquisition by the Fund of the Property. In its reports to the Department, CSC stated that, subject to certain assumptions, the acquisition price of the Property was fair, the transaction was a prudent investment for the Fund, and the transaction was in the best interest of the participants and beneficiaries of the Fund. Application D-10514 also contained a copy of an independent appraisal report, dated August 22, 1997, prepared for the Union by Roe Research, Inc., stating that, as of August 8, 1997, the fair market value of the Property was $40 million “as is” in a “bulk sale of all parcels to a single purchaser.” The appraiser indicated that the highest and best use of the Property would be to renovate or to demolish and replace some or all of the existing improvements on the Property. In this
On May 29, 1998, the Department published in the
In response to this issue raised by the commentators, representatives of the Fund advised the Department in a letter, dated August 12, 1998, that the Fund had committed to the Partnership a total of $100 million (including the $40 million acquisition cost). It was represented that the additional $60 million had been placed in a separate account (
On September 14, 1998, an additional submission from the applicant included the Partnership's proposed investment structure for the redevelopment of the Property which indicated equity capital of $100 million from the Fund, anticipated equity investment from third party investors of $100 million, and a balance of $325 million to come from debt financing. It was represented in this letter that any decision to commit more of the Fund's assets to the redevelopment of the Property would be subject to the approval of an independent fiduciary retained by the Fund to monitor the investment. On September 24, 1998, an additional submission from the applicant included a clarification that, to date, less than $60 million (including the Fund's initial capital contribution of $40 million to the Partnership) had been spent on the Property.
Because of the facts that came to the Department's attention regarding the Fund's involvement in the redevelopment of the Property, the Department suspended processing the exemption application on February 2, 1999, pending an investigation into the facts surrounding the redevelopment of the Property. Further, the Department began discussions with the Board of Trustees of the Fund (the Trustees) about additional safeguards for inclusion in the final exemption.
In this regard, the Trustees agreed by way of a Term Sheet dated October 13, 1999 (the Term Sheet), to several undertakings in addition to the conditions published in the Notice of Proposed Exemption. The Department was not a party to the Term Sheet. One such safeguard agreed to by the Trustees, pursuant to the Term Sheet, was a percentage limitation on the amount of the total assets of the Fund to be invested in the redevelopment of the Property. The relevant provision of the Term Sheet states that:
[t]he Trustees will instruct the custodian of the Fund to transfer to the Diplomat Account any additional amounts * * * for the operations or expenses of the Diplomat Account or the Partnership, so long as the total amount of the Fund assets at risk (
Further, the Trustees agreed, pursuant to the Term Sheet, to the appointment of a Named Fiduciary to oversee the Fund's investment in the Partnership and to oversee the continuing redevelopment of the Property. In this regard, on November 8, 1999, the Trustees appointed Actuarial Sciences Associates, Inc. (ASA), to serve as the Named Fiduciary of the Diplomat Account, an account which was established to hold the Fund's interest in the Partnership, the Fund's interest in the General Partner, and any other Fund assets invested in or awaiting investment in the Property. ASA's service contract was subject to the approval of the Secretary of Labor. The performance of ASA's services and responsibilities commenced on the date when the final exemption was executed by the Secretary of Labor or her delegate.
The final exemption for application D-10514 was published in the
Pursuant to the provisions of the Term Sheet, ASA, as the Named Fiduciary of the Fund, could be replaced by the Trustees only upon the concurrence of the Department or pursuant to a court order for cause. Subsequently, when ASA established a wholly-owned subsidiary, ASA Fiduciary Counselors, Inc. (ASA Counselors) to provide the investment advisory services previously performed by ASA for the Diplomat Account, ASA sought and received the consent of the Trustees of the Fund and the Department before assigning those responsibilities to ASA Counselors.
On March 15, 2000, the Department received an exemption application (D-10879) from ASA and from ASA Counselors, requesting retroactive relief from the prohibited transaction provisions of section 406(a) and (b) of the Act and section 4975 of the Code. The requested relief was similar to that available under Prohibited Transaction Class Exemption 84-14 (PTCE 84-14),
After giving full consideration to the entire record for application D-10879, including the comments from commentators and the response to such comments from ASA and ASA Counselors, the Department determined to grant the requested relief. The final exemption for application D-10879, was published in the
Effective as of November 3, 2000, ASA Counselors resigned its appointment as Named Fiduciary with respect to the Fund and the Diplomat Account. Prior to that date, the Trustees entered into an agreement with IFS, dated September 12, 2000, the terms of which were reviewed and found acceptable by the Department. Pursuant to the terms of such agreement IFS was appointed, effective November 3, 2000, as the successor Named Fiduciary of the Fund. On December 7, 2000, IFS hired LaSalle Investment Management, Inc., a member of the Jones, Lang, LaSalle group, to act as the investment manager with respect to the Property.
On December 21, 2000, the Department received an exemption application (D-10960) in which IFS requested relief from the prohibited transaction provisions of section 406(a) and (b) of the Act and section 4975 of the Code. IFS, as successor Named Fiduciary of the Fund, sought relief identical to that received by its predecessors, ASA and ASA Counselors, pursuant to PTE 2000-49. In this regard, although IFS could not satisfy certain conditions of PTCE 84-14, IFS requested an administrative exemption which would permit IFS to be treated as a QPAM for certain purposes related to the redevelopment and operation of the Property (the Project).
On January 10, 2001, officials of the Department met with IFS to discuss IFS' concern that completion of construction of improvements on the Property would not be possible under a conservative interpretation of the 13% Limitation,
In the Notice, the Department invited all interested persons to submit written comments and requests for a hearing on the proposed exemption for applications D-10960 and D-10971 within forty-five (45) days of the date of the publication of the Notice in the
In notifying interested persons of the pendency of the proposed exemption for applications D-10960 and D-10971 and notifying such interested persons of the right to comment and/or request a hearing on the proposed exemption, IFS furnished by first class mailing, within ten (10) days of the publication of the Notice in the
During the comment period, certain commentators objected to the fact that IFS had only provided notification of the pendency of the proposed exemption for applications D-10960 and D-10971 to the Trustees of the Fund and to those interested persons who had commented on PTE 99-46. In this regard, these commentators believe
The Department has considered the concern raised by commentators that the notification provided by IFS to interested persons was inadequate because the requested relief might seriously affect the stability of the Fund. In this regard, the Department notes that the administrative record for applications D-10960 and D-10971 includes a letter, dated April 2, 2001, from the Fund's counsel which addressed the impact of the proposed exemption on the stability of the Fund. In this regard, the April 2 letter indicates that the Fund's administrator has determined that granting the requested modification to the provisions of the Term Sheet concerning the 13% Limitation would not adversely affect the liquidity of the Fund and/or the ability of the Fund to pay benefits when due.
Further, the Department has considered the expense to the Fund involved in providing notification of the publication of the proposed exemption for applications D-10960 and D-10971 to all the participants and beneficiaries of the Fund. In this regard, the expense of mailing first class to the approximately 123,000 participants and beneficiaries of the Fund would constitute an additional burden to the Fund. Accordingly, the Department has determined that the notification to interested persons as provided by IFS with regard to the publication of the proposed exemption for applications D-10960 and D-10971 was adequate and reasonable under the circumstances.
During the comment period, the Department received four (4) requests from commentators that the Department hold a hearing to evaluate the merits of the representations from IFS with respect to the proposed transactions. In this regard, the commentators requested that the Department delay approval of the requested exemption until all participants and beneficiaries had a chance to review the materials and to present objections to the proposed transactions at a hearing.
The Department has carefully considered the concerns expressed by the individuals who requested a hearing. After a review of these concerns, the Department does not believe that there are material factual issues relating to the proposed exemption that were raised by commentators during the comment period which would require the convening of a hearing. Thus, the Department has determined not to delay consideration of the final exemption by holding a hearing on applications D-10960 and D-10971.
During the comment period, the Department received eleven (11) letters from nine (9) interested persons commenting on the transactions involved in applications D-10960 and D-10971. At the close of the comment period, the Department forwarded copies of these comment letters to IFS and requested that IFS address in writing the various issues raised by the commentators.
As an initial matter, IFS noted in responding to the Department's request, that none of the comments was directed at application D-10960. Rather, the comments relate to application D-10971 in which IFS requested modification of a provision of the Term Sheet concerning the 13% Limitation. Accordingly, the responses provided by IFS, herein, generally discuss D-10971, but to the extent applicable, are intended by IFS to provide responses with respect to both applications. A description of the comments and the responses from IFS thereto are summarized in the numbered paragraphs, below.
1. A number of commentators expressed concern that the decision to invest the Fund's assets in the Partnership has not been and would not be, made solely to benefit the participants and beneficiaries of the Fund, and that the investment by the Fund in the Partnership has not been, and would not become, profitable.
As an initial matter, IFS notes “that these comments are inapposite to the extent that they relate to the Fund's investment in the Project up to the 13% Allocation Limit.” In this regard, IFS maintains that, pursuant to PTE 99-46, the Department has already sanctioned the investment of Fund assets in the Partnership to that extent.
With regard to whether an additional investment by the Fund above the 13% Limitation would be in the interest of participants and beneficiaries of the Fund, IFS maintains that the requested modification to the provision of the Term Sheet concerning the 13% Limitation will allow an additional investment that can be reasonably expected to enhance the Fund's overall investment and, likely will reduce the risk that the Fund will suffer a significant financial loss.
As indicated in the applications, IFS represents that the Project, since December 14, 2000, has been under the management of LaSalle Investment Management, Inc. (LaSalle), acting as a QPAM within the meaning of PTCE 84-14 with respect to the Project. In its capacity as an independent expert in the hospitality, real property, and construction industries, and after an extensive review of the status of the Project, it is represented that LaSalle (with the assistance of various divisions of the Jones Lang LaSalle group, including the Jones Lang LaSalle Hotels group) has concluded, based on its acknowledged expertise, that a further investment in the Project by the Fund would likely maximize the benefits to the Fund and would, therefore, be in the interest of participants and beneficiaries of such Fund.
It is represented that LaSalle has determined that, due to risk factors inherent in the development process and the still uncompleted state of the Project, the current value of the partially-completed Property (expressed as a percentage of completion) is well below its conceptual completion value, and that an appraiser, bank, or prospective purchaser would discount significantly the current value of the Property for purposes of an appraisal, loan, or purchase, respectively. It is further represented that LaSalle believes, based on its significant expertise within the hospitality and real estate industries, that most investors interested in the Project would view any current effort to sell the Property as akin to a distressed sale and therefore would be looking for a very high opportunistic
In addition, it is represented that if the Project were abandoned or interrupted, because additional investment from the Fund was not permitted by the Department, there would be significant costs associated with shutting down the Project, including operational, legal, contractual, and degradation avoidance costs, many of which costs would not otherwise be incurred. LaSalle has estimated that these costs alone could cause the Fund to substantially exceed the 13% Limitation in any event.
In contrast, it is represented that if additional cash infusions from the Fund enable the Project to be completed and if, as LaSalle expects, the Project subsequently achieves stabilized income, LaSalle projects that the increased value of the Project from completion and income stabilization, less the remaining cost of completion, will likely be significantly higher than the value of the Project, if the Fund was forced to abandon or sell it as a distressed asset. In addition, opening the Property would give the Partnership the opportunity to receive cash flow from operations, as well as to establish a “track record” of performance in actual operation, which is likely to enhance the sale value of the Property. Thus, it is represented that, if the Project were not completed, significant losses would be incurred by the Fund, and the Fund would be prevented from enjoying the benefits of completion, which LaSalle has concluded likely would significantly outweigh the additional costs of completion.
As discussed in the applications, the three principal financing alternatives to further cash infusion from the Fund include outside debt financing (on a non-recourse basis), outside equity investment, and sale of a portion of the assets of the Property. In this regard, it is represented that LaSalle has concluded, based on a conservative interpretation of the 13% Limitation, that completion of the Project is not feasible, absent a modification to that Limitation because none of these three alternatives would be sufficient to provide the requisite financing. First, in light of the status of construction and retention of an operator, it is represented that the Partnership could not timely obtain the requisite non-recourse financing to remain within the 13% Limitation (assuming that non-recourse financing could be obtained at all). Second, it is represented that bringing in an equity partner at this juncture (assuming that one could be found) would take an unacceptable amount of time (thereby delaying completion of the Project significantly) and would likely result in an extremely unfavorable business arrangement for the Fund because any equity investor would likely treat this as a distressed sale. Finally, it is represented that asset sales of components of the Project, such as future development sites and the country club hotel, would not provide sufficient capital to avoid exceeding the 13% Limitation, and could ultimately reduce the overall return to the Fund.
For the foregoing reasons, IFS maintains that regardless of the merit of the initial investment by the Fund in the Partnership, it is clear that an additional investment by the Fund in the Partnership would be in the interest of participants and beneficiaries and would improve the Fund's investment return on the Project, based on LaSalle's conclusion that such an investment would permit the Fund to realize the substantial benefits of completion (including avoidance of the losses attendant to abandonment, sale, or interruption of the Project at this stage) which are projected to outweigh the completion costs.
2. A number of commentators indicated a concern about a lack of diversification in the Fund's investments resulting from its investment in the Project.
In the opinion of IFS, “[b]y granting PTE 99-46, the Department effectively determined that an investment in the Partnership of 13 percent of Fund assets would not result in a lack of diversification.”
IFS notes that neither section 408(a) of the Act nor the regulations thereunder require a showing of compliance with section 404(a)(1)(C) of the Act in an application for a prohibited transaction exemption.
IFS notes that, even in light of the recent significant downturn in the equity markets, an $800 million investment in the Partnership represents less than 18.5% of the Fund's assets. In addition, based on information provided by the Fund, IFS understands that most of the remaining Fund assets are invested in a broad range of diversified investments, including investment in at least three other asset classes (domestic and international fixed income, domestic and international equity and alternative investments).
Even if it could be argued that the Fund's investments would not be sufficiently diversified as a result of an additional investment in the Project, IFS points out that one could conclude that it would nevertheless be prudent under the Act to have less diversification, because of the unique circumstances involving the Project. In this regard, independent of any consideration of the overall portfolio of the Fund, LaSalle has concluded that an additional investment in the Partnership would be prudent because of the substantial economic harm to the Fund and the Partnership that would result if application D-10971 were denied. It is represented that if the additional investment were not made (which could be the case if application D-10971 was not granted), the Project likely would not be completed even though the projected benefits of completion (including avoidance of the loss attendant to interruption and/or abandonment) significantly outweigh the additional costs of completion.
In contrast, it is represented that granting the exemption would allow the Project to be completed which, in turn, should allow the Partnership (and,
3. One commentator noted that application D-10514 indicated that the Project was “camouflaged * * * to be about a $40 million project.”
As noted above, IFS maintains that the subject of application D-10971 is not whether the Fund's initial investment in the Partnership was appropriate. Rather, IFS seeks an amendment to the 13% Limitation, because the increase to that limitation (
4. Various commentators expressed concern about past actions of the Trustees and the prior independent Named Fiduciary, including whether Fund assets have been wasted or mismanaged with respect to the Project. Other commentators questioned how information could be obtained regarding how the Fund's investment in the Project has been expended, and claimed that IFS did not provide an adequate explanation of the steps to be taken to protect the interests of participants and beneficiaries.
As the current independent named fiduciary, IFS is charged with the responsibility of appropriately reviewing prior (and future) management and expenditure of Fund assets with respect to the Project. It is represented that such review is currently being conducted. However, in the opinion of IFS, the subject of these applications is not whether the Fund's Trustees, the prior Named Fiduciary, service providers, or other fiduciaries mismanaged assets but whether an additional investment by the Fund, as determined by the current independent Named Fiduciary, should be permitted on the grounds that it would clearly be in the interest of the participants and beneficiaries of the Fund.
As discussed in application D-10960, the interests of participants and beneficiaries are protected because IFS is acting prudently as an
Under the IFS Agreement, IFS has a continuing responsibility to furnish the Trustees and the Department with monthly written reports concerning the progress of the Project (including,
Additionally, there are very strict limitations on the ability of the Trustees to remove IFS from its position as independent Named Fiduciary, which allow IFS to maintain strict independence from the Trustees. Section 14 of the IFS Agreement provides that, until November 5, 2002, no termination of IFS:
IFS recognizes the concern expressed by these commentators that, unless an independent named fiduciary, such as IFS, remains involved in the Project for an extended time period, the Trustees could again control the Project. However, IFS understands that, if the applications are granted, the Trustees have agreed that the Project will be managed by an independent party for so long as the Fund has a controlling interest in the underlying assets of the Partnership or its successors.
IFS respectfully requests that any exemption granted in connection with application D-10960 be coextensive with IFS’ service as independent Named Fiduciary, rather than be limited to five (5) years, from November 3, 2000, until November 3, 2005 (as proposed), because the revised arrangement between the Trustees and the Department contemplates a long-term relationship between the Fund and an independent named fiduciary, and because it would be expensive for the Fund to incur the costs of subsequent applications to renew or modify the exemption.
It is anticipated that the existence of an independent named fiduciary on a long-term basis will help assure completely independent fiduciary decision-making with respect to all aspects of the Project, and will further protect the interests of participants and beneficiaries of the Fund. In addition, the concerns expressed in the comments regarding prior actions by the Trustees or other fiduciaries of, or service providers to, the Fund are inapposite, because IFS will, with the assistance of LaSalle, other industry professionals, and legal counsel independent of the Trustees, continue to exercise its fiduciary discretion independent of any influence from such individuals.
The Department concurs with IFS’ request that the effectiveness of the final exemption not be limited to the five (5) year period, from November 3, 2000, until November 3, 2005. Accordingly, the Department has modified the final exemption, as follows:
(a) By deleting the phrase, “until November 3, 2005,” from Section I, as published in the
(b) By deleting in its entirety the paragraph entitled, “Temporary Nature of Exemption,” as published in the
(c) by modifying a sentence in the definition of the “time” as of which any transaction occurs, as published in Section III(i) of the Notice on page 15902, column 1, lines 60-69, and column 2, lines 1-3 of the
If any transaction is entered into [on or after the effective date of this exemption] or if a renewal that requires the consent of the Named Fiduciary occurs [on or after the effective date of this exemption] and the requirements of this proposed exemption are satisfied at the time the transaction is entered into or renewed, then the requirements will be deemed to continue to be satisfied thereafter with respect to the transaction.
The Department emphasizes that the relief provided for the transactions
Under the agreement, executed by the chairman of the Trustees on May 31, 2001, it is the Department's understanding that the Diplomat Account will be managed by an independent Named Fiduciary for so long as the Fund has a controlling interest in the Project. Accordingly, upon the resignation, replacement, or removal of IFS, as independent Named Fiduciary with respect to the Diplomat Account, any successor to IFS who will serve as the independent Named Fiduciary for the Fund with respect to the Diplomat Account, may submit an application for exemption to the extent that such successor independent Named Fiduciary does not qualify as a QPAM and would need an exemption to be treated as if they were a QPAM.
The relief requested in application D-10971 pertains to the modification of the 13% Limitation described in PTE 99-46. The requested modification involves setting the limitation at $800 million rather than the 13% Limitation, as set forth in the Term Sheet. If the modification is approved by the Department by the granting of the subject exemption, IFS and any successor to IFS who serves as the independent Named Fiduciary for the Fund with respect to the Diplomat Account would be subject to the $800 million fixed amount. By letter dated October 11, 2001, IFS indicated that, if the proposed amendment to PTE 99-46 is granted, it does not foresee any circumstances under which it will request from the Department any additional amendments to PTE 99-46 that would have the effect of increasing the maximum amount of assets of the Fund that may be invested in the Project.
5. Various commentators requested information regarding the Department's investigation of the use of Fund assets in the development of the Project. Other commentators indicated that IFS is required to submit copies of all correspondence regarding the substantive issues involved in that investigation.
With respect to the commentators' indication that IFS did not submit copies of all correspondence regarding the substantive issues involved in the Department's investigation of the use of Fund assets in connection with the development of the Project, IFS noted that it was not, at the time the applications were submitted, aware of any correspondence with the Department that addresses the substantive issues related to the investigation and that is required to be provided to the Department, pursuant to 29 CFR § 2570.35(a)(7) of the Department's regulations.
Since the applications were submitted, IFS has become aware of certain correspondence that cannot clearly be classified as substantive correspondence related to any investigation. However, IFS has submitted certain correspondence that, based on a conservative interpretation of 29 CFR § 2570.35(a)(7), arguably may be appropriate to provide to the Department in connection with the applications. It is IFS’ position that the request concerning the release of information about the Department's investigation is solely within the purview of the Department.
The Department notes that the disclosure required by 29 CFR § 2570.35(a)(7) of the Department's regulation (relating to investigations, examinations, litigation, and continuing controversy by or with certain specified Federal agencies), is necessary to ensure that the Department's exemption activities do not compromise its enforcement efforts. In this regard, the Department does not require submission by an applicant of copies of all correspondence, but only requires submission of copies of correspondence relating to substantive issues involved in such investigation, examination, litigation, or controversy. Once copies of such correspondence become part of the administrative record of an application for exemption, 29 CFR § 2570.51 of the Department's regulations provides that the public may examine and copy the administrative record of each exemption application and all correspondence and documents submitted in connection therewith.
To the extent that information submitted in connection with an investigation, examination, litigation, or continuing controversy by or with certain specified Federal agencies, is not contained in the administrative record of an application for exemption, such information is not available to the public and is not considered by the Department in making its determination that the transaction for which relief has been requested is administratively feasible and in the interest of, and protective of a plan, and its participants and beneficiaries, pursuant to section 408(a) of the Act. Thus, the Department's final decision on any exemption is based on the information contained in the official exemption application file. The Department further notes that an exemption does not take effect or protect parties in interest from liability with respect to the exemption transaction unless the material facts and representations contained in the application, and in any materials and documents submitted in support of the application, are true and complete (see 29 CFR § 2570.49(a)).
The final decision on the merits of a requested exemption by the Department entails an administrative process which is based on a careful review of the entire public record of facts and representations as documented in the application file. The Department may not grant an exemption, pursuant to section 408(a) of the Act, unless a determination is made on the record with respect to the findings that such an exemption is administratively feasible, in the interest of the plan and of its participants and beneficiaries, and protective of the rights of the participants and beneficiaries of such plan.
6. One commentator questioned whether IFS and ASA “have a clue about what is going on, except spending the Pension Fund's money.”
In response to such comment, IFS notes that neither ASA nor ASA Counselors now has any ongoing relationship with the Fund or the Project. As noted in application D-10960, IFS replaced ASA Counselors as independent Named Fiduciary of the Fund. Pursuant to its authority as independent Named Fiduciary, effective December 14, 2000, IFS appointed LaSalle as QPAM, pursuant to PTCE 84-14, with respect to the Project.
It is represented that both IFS and LaSalle have devoted significant personnel and enormous amounts of time to the Project. In this regard, IFS, the most senior officers of which are personally involved in the Project on a daily basis, has broad expertise in a wide range of subjects and, in particular, the financial and fiduciary aspects of pension fund investing.
It is further represented that LaSalle is a leading global real estate investment manager that frequently acts as a fiduciary. In addition, LaSalle is a member of the Jones Lang LaSalle group, various divisions of which have assisted (and will continue to assist) LaSalle in connection with the Project. These divisions, including Jones Lang LaSalle Hotels, the Project and Development Management Group, the Risk Management Group, and Jones
IFS' conclusions set forth in application D-10971 regarding the benefit to participants and beneficiaries of further investment in the Project are premised in large part on expert conclusions by LaSalle. In this regard, (based on its careful review of the status of the Project and its extensive expertise as a real estate investment manager), LaSalle has concluded that the Fund is likely to suffer significant economic harm, if the Fund was not able to complete the Project (which would be the case if the Fund could not invest further assets in the Partnership because of the 13% Limitation). It is represented that the various reports prepared by both LaSalle and IFS with respect to the Project are clear evidence of the considerable knowledge of both entities with respect to the Project.
7. One commentator requested information on whether there is a criminal investigation regarding the Project.
IFS has not been formally advised that there is any pending criminal investigation with respect to the Project.
8. Various commentators indicated that IFS did not provide an adequate explanation of whether the exemption transaction is customary in the industry.
IFS disagrees with the contention of the commentators in that regard. It is IFS' view that in granting PTE 99-46, the Department has implicitly determined that the underlying transaction (
Furthermore, as noted in application D-10971, it is customary for an equity investor to use its capital to financially support a real estate project (so long as the investor believes that the incremental investment will either earn a reasonable return or avoid significant losses) and establish an operating history before abandoning the project or engaging in a distressed sale of assets or obtaining equity co-investment on onerous terms that may result in a substantial economic loss that exceeds the benefit of completion of the project. It is represented that the requested amendment would permit the Fund to continue to financially support the Project to completion, without incurring the risk of possibly violating PTE 99-46.
In summary, IFS maintains that if the relief requested in application D-10971 is not granted, the Fund may not be able to make an additional investment in the Partnership, because of the 13% Limitation. It is represented that after a careful review of the Project, LaSalle has concluded that such an additional investment should (i) allow the Partnership to realize a stabilized value of the Property in excess of its estimated current market value (if the Property were sold today in a distressed sale) plus the costs of completion; (ii) allow the Partnership to receive from operations a current cash yield on its investment; (iii) allow the Partnership to avoid the costs of interruption or abandonment of the Project; and (iv) prevent the Partnership from being forced to sell the Property as a distressed asset and at a significantly reduced amount. Thus, it is represented that LaSalle (and, based on LaSalle's advice, IFS) has concluded that, if the requested relief is not granted, the Partnership, and, through it, the Fund, could suffer significant adverse consequences, which clearly would not be in the interest of participants and beneficiaries.
9. In a letter dated June 15, 2001, IFS notified the Department of a development regarding the Property that, in the opinion of IFS, further supports LaSalle's conclusion that completing the Project is likely to lead to a more financially attractive result for the Fund than not completing it. In this regard, it is represented that LaSalle has conducted a competitive process for the selection of a hotel operator in which a field of ten (10) candidates was narrowed to three (3) major operators. Further, interviews and negotiations with each of the three finalists resulted in the selection of Starwood Hotels and Resorts Worldwide (Starwood) through its corporate vehicle, Westin Management Company East, Inc. It is represented that Starwood is the owner of such well-known brands as Sheraton, Westin, and St. Regis.
Further, it is represented that on June 5, 2001, LaSalle signed a brand and management agreement (together, the Operating Agreement) with Starwood to brand and operate the Property as the Westin Diplomat Resort and Spa and to operate the country club, pursuant to a parallel operating agreement, as a member of Starwood's Luxury Collection. It is represented that the terms of the 15-year Operating Agreement evidence Starwood's significant, long-term business and financial commitment to the Property. In this regard, it is represented that the Operating Agreement requires Starwood to provide a substantial amount of “key money” to pay for various pre-opening expenses and to provide loans, at very attractive terms, to the Property (without recourse to the Fund), in certain circumstances, including the occurrence of actual future cash flow shortfalls related to either the operation of the Property or its ability to service debt.
It is represented that the willingness of a major international hotel management company to enter into a long-term agreement, the terms of which are very favorable to the Partnership and the Property should be viewed as further evidence of the economic viability of the Property and the commercial reasonableness of permitting the Fund to fund the development of the Property to completion.
As a result of the terrorist attacks of September 11, 2001 and its potential impact on the hotel and convention industry, the Department specifically requested that IFS, as the independent Named Fiduciary of the Fund, confirm that the most prudent course of action for the Fund to follow is completion of the Project. In response to this request, IFS, in a letter dated October 5, 2001, noted that it sought the views of LaSalle and Starwood. Both LaSalle and Starwood, in letters dated October 4, 2001 and October 5, 2001, respectively, indicated that none of the groups that had booked space cancelled their reservations subsequent to the September 11, 2001 events. Both parties also noted that it is not possible to do an assessment of the impact of these events on the The Westin Diplomat Resort and Spa's future hotel and convention business—other than to note the absence of cancellations—because the hotel will not begin operations until January 2002. In a letter dated October 5, 2001, LaSalle stated that it has not changed its opinion that the prudent course of action is to complete construction of the Property as soon as possible. In a separate letter dated October 5, 2001, IFS states that “IFS has discussed this opinion with appropriate parties and finds this conclusion reasonable.”
Accordingly, after full consideration and review of the entire administrative record, including the written comments from the commentators and the responses thereto by IFS, the Department has determined to grant the exemption, as modified and amended herein.
The comments submitted by the commentators to the Department and the response by IFS thereto has been included as part of the public administrative record of the exemption application. The complete application file, including all supplemental submissions received by the Department, is available for public inspection in the Public Disclosure Room of the Pension Welfare Benefits Administration, Room N-1513, U.S. Department of Labor, 200 Constitution Avenue N.W., Washington, D.C. 20210.
For a complete statement of the facts and representations supporting the Department's decision to grant this exemption refer to the Notice published on March 21, 2001, 66 FR 15900.
Ms. Angelena C. Le Blanc of the Department, telephone (202) 219-8883. (This is not a toll-free number.)
The restrictions of sections 406(a), 406(b)(1), and 406(b)(2) 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 (E) of the Code, shall not apply to the proposed sale by the Plan of certain limited partnership interests (collectively, the Interest(s)) to Sierra Health Services, Inc., (the Employer) the sponsor of the Plan and a party in interest with respect to the Plan, provided that the following conditions are met:
(a) The sale is a one-time transaction for cash;
(b) The Plan pays no commissions or any other expenses relating to the sale;
(c) The sales price is the greater of (i) the fair market value of the Interests as determined by a qualified, independent, appraiser (ii) the value of the Interests, as determined by the general partner of each partnership and reported on the most recent account statements available at the time of the sale or (iii) the Plan's original acquisition and holding costs.
(d) The Plan suffers no loss, as a result of its acquisition and holding of the Interests, taking into account all cash distributions received by the Plan as a result of owning the Interests.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the Notice of Proposed Exemption published on July 30, 2001 at 66 FR 39356.
The Department received one comment from an interested person on the proposed exemption. The Department forwarded a copy of the comment to the 401(k) committee (the Committee), which approves the guidelines for investment of the Employer directed fund, and requested that the Committee respond in writing to the concerns raised by the commentator. A description of the comment and the Committee's response are summarized below.
The commentator urged that the exemption not be granted because she believed that the Property had been under valued and requested another independent appraisal of the Property.
The Committee, in response represents the following: The valuation used for the purchase price is the highest of the following three items: (1) The fair market value of the Interests, as determined by a qualified independent appraiser; (2) the value of the Interests as determined by the General Partner of each partnership; or (3) the Plan's original acquisition and holding costs.
As part of a long-term employee retention strategy, the Employer ceased to direct the investment of the employer's contributions to the Plan. Prudential Securities was engaged as Trustee, and both the employer's and employees' contributions were combined in a single account. Every participant now has the ability to direct his/her investments, on a daily basis if they so desire. The holding of these Interests prevents participants from being able to direct their investment to the extent that these Interests constitute a portion of their Plan assets.
The qualified, independent, certified appraisal was completed by William P. Geary, a Nevada Certified General Appraiser. The appraisal was prepared in conformity with the current requirements of the Uniform Standards of Professional Appraisal Practice as published by the Appraisal Foundation, and the federal financial institutions regulating agencies. The compensation for the appraisal was not contingent upon the reporting of a predetermined value or direction in value that favors SHS, the amount of the value estimate, the attainment of stipulated result or the occurrence of a subsequent event.
Accordingly, after giving full consideration to the entire record, including the comment by the commentator, and the responses of the Committee, the Department has determined to grant the exemption as proposed. In this regard, the comment submitted to the Department has been included as part of the public record of the exemption application. The complete application file, including all supplemental submissions received by the Department, is made available for public inspection in the Public Documents Room of the Pension and Welfare Benefits Administration, Room N-1513, U.S. Department of Labor, 200 Constitution Ave. NW, Washington DC 20210.
Khalif Ford of the Department, telephone (202) 219-8883 (this is not a toll-free number).
The restrictions of section 406(a)(1)(A) through (D) 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 as of January 24, 2001, to:
(a) The lending of securities, under certain exclusive borrowing arrangements, to:
(1) Barclays Bank plc (Barclays);
(2) Barclays Capital Inc. (BCI) and any other affiliate of Barclays that, now or in the future, is a U.S. registered broker-dealer or a government securities broker or dealer or U.S. bank;
(3) Barclays Capital Securities Limited, which is subject to regulation in the United Kingdom by the Securities and Futures Authority of the United Kingdom (the UK SFA); and
(4) Any broker-dealer or bank that, now or in the future, is an affiliate of Barclays which is subject to regulation by the UK SFA or the Bank of England,(each such affiliated foreign broker-dealer or bank referred to as a “Foreign Borrower,” and, together with Barclays and BCI, collectively referred to as the “Borrowers”), by employee benefit plans, including commingled investment funds holding assets of such plans (Plans), with respect to which Barclays or any of its affiliates is a party in interest; and
(b) The receipt of compensation by Barclays or any of its affiliates in connection with securities lending transactions, provided that the following conditions set forth in Section II, below, are satisfied.
(a) For each Plan, neither the Borrower nor any affiliate has or exercises discretionary authority or control over the Plan's investment in the securities available for loan, nor do they render investment advice (within the meaning of 29 CFR 2510.3-21(c)) with respect to those assets.
(b) The party in interest dealing with the Plan is a party in interest with respect to the Plan (including a fiduciary) solely by reason of providing services to the Plan, or solely by reason of a relationship to a service provider described in section 3(14)(F), (G), (H) or (I) of the Act.
(c) The Borrower directly negotiates an exclusive borrowing agreement (the Borrowing Agreement) with a Plan fiduciary which is independent of the Borrower and its affiliates.
(d) The terms of each loan of securities by a Plan to a Borrower are at least as favorable to such Plan as those of a comparable arm's-length transaction between unrelated parties, taking into account the exclusive arrangement.
(e) In exchange for granting the Borrower the exclusive right to borrow certain securities, the Plan receives from the Borrower either (i) a flat fee (which may be equal to a percentage of the value of the total securities subject to the Borrowing Agreement from time to time), (ii) a periodic payment that is equal to a percentage of the value of the total balance of outstanding borrowed securities, or (iii) any combination of (i) and (ii) (collectively, the Exclusive Fee). If the Borrower deposits cash collateral, all the earnings generated by such cash collateral shall be returned to the Borrower; provided that the Borrower may, but shall not be obligated to, agree with the independent fiduciary of the Plan that a percentage of the earnings on the collateral may be retained by the Plan or the Plan may agree to pay the Borrower a rebate fee and retain the earnings on the collateral (the Shared Earnings Compensation). If the Borrower deposits non-cash collateral, all earnings on the non-cash collateral shall be returned to the Borrower; provided that the Borrower may, but shall not be obligated to, agree to pay the Plan a lending fee (the Lending Fee)(the Lending Fee and the Shared Earnings Compensation are collectively referred to as the “Transaction Lending Fee”). The Transaction Lending Fee, if any, shall be either in addition to the Exclusive Fee or an offset against such Exclusive Fee. The Exclusive Fee and the Transaction Lending Fee may be determined in advance or pursuant to an objective formula, and may be different for different securities or different groups of securities subject to the Borrowing Agreement. Any change in the Exclusive Fee or the Transaction Lending Fee that the Borrower pays to the Plan with respect to any securities loan requires the prior written consent of the independent fiduciary of the Plan, except that consent is presumed where the Exclusive Fee or the Transaction Lending Fee changes pursuant to an objective formula. Where the Exclusive Fee or the Transaction Lending Fee changes pursuant to an objective formula, the independent fiduciary of the Plan must be notified at least 24 hours in advance of such change and such independent Plan fiduciary must not object in writing to such change, prior to the effective time of such change.
(f) The Borrower may, but shall not be required to, agree to maintain a minimum balance of borrowed securities subject to the Borrowing Agreement. Such minimum balance may be a fixed U.S. dollar amount, a flat percentage or other percentage determined pursuant to an objective formula.
(g) By the close of business on or before the day the loaned securities are delivered to the Borrower, the Plan receives from the Borrower (by physical delivery, book entry in a securities depository located in the United States, wire transfer, or similar means) collateral consisting of U.S. currency, securities issued or guaranteed by the U.S. Government or its agencies or instrumentalities, irrevocable bank letters of credit issued by a U.S. bank other than Barclays or any affiliate thereof, or any combination thereof, or other collateral permitted under Prohibited Transaction Exemption 81-6 (46 FR 7527, Jan. 23, 1981, as amended at 52 FR 18754, May 19, 1987) (PTE 81-6) (as amended or superseded)
(h) The market value (or in the case of a letter of credit, the stated amount) of the collateral initially equals at least 102 percent of the market value of the loaned securities on the close of business on the day preceding the day of the loan and, if the market value of the collateral at any time falls below 100 percent (or such higher percentage as the Borrower and the independent fiduciary of the Plan may agree upon) of the market value of the loaned securities, the Borrower delivers additional collateral on the following day to bring the level of the collateral back to at least 102 percent. The level of the collateral is monitored daily by the Plan or its designee, which may be Barclays or any of its affiliates which provides custodial or directed trustee services in respect of the securities covered by the Borrowing Agreement for the Plan. The applicable Borrowing Agreement shall give the Plan a continuing security interest in and lien on the collateral.
(i) Before entering into a Borrowing Agreement, the Borrower furnishes to the Plan the most recent publicly available audited and unaudited statements of its financial condition, as well as any publicly available information which it believes is necessary for the independent fiduciary to determine whether the Plan should enter into or renew the Borrowing Agreement.
(j) The Borrowing Agreement contains a representation by the Borrower that, as of each time it borrows securities, there has been no material adverse change in its financial condition since the date of the most recently furnished statements of financial condition.
(k) The Plan receives the equivalent of all distributions made during the loan period, including, but not limited to, cash dividends, interest payments, shares of stock as a result of stock splits, and rights to purchase additional securities, that the Plan would have received (net of tax withholdings)
(l) The Borrowing Agreement and/or any securities loan outstanding may be terminated by either party at any time without penalty (except for, if the Plan has terminated its Borrowing Agreement, the return to the Borrower of a pro-rata portion of the Exclusive Fee paid by the Borrower to the Plan)
(m) In the event that the Borrower fails to return securities in accordance with the Borrowing Agreement, the Plan will have the right under the Borrowing Agreement to purchase securities identical to the borrowed securities and apply the collateral to payment of the purchase price. If the collateral is insufficient to satisfy the Borrower's obligation to return the Plan's securities, the Borrower will indemnify the Plan in the U.S. with respect to the difference between the replacement cost of securities and the market value of the collateral on the date the loan is declared in default, together with expenses incurred by the Plan plus applicable interest at a reasonable rate, including reasonable attorneys' fees incurred by the Plan for legal action arising out of default on the loans, or failure by the Borrower to properly indemnify the Plan.
(n) Except as otherwise provided herein, all procedures regarding the securities lending activities, at a minimum, conform to the applicable provisions of PTE 81-6 (as amended or superseded), as well as to applicable securities laws of the United States and/or the United Kingdom, as appropriate.
(o) Only Plans with total assets having an aggregate market value of at least $50 million are permitted to lend securities to the Borrowers; provided, however, that—
(1) In the case of two or more Plans which are maintained by the same employer, controlled group of corporations or employee organization (the Related Plans), whose assets are commingled for investment purposes in a single master trust or any other entity the assets of which are “plan assets” under 29 CFR 2510.3-101 (the Plan Asset Regulation), which entity is engaged in securities lending arrangements with the Borrowers, the foregoing $50 million requirement shall be deemed satisfied if such trust or other entity has aggregate assets which are in excess of $50 million; provided that if the fiduciary responsible for making the investment decision on behalf of such master trust or other entity is not the employer or an affiliate of the employer, such fiduciary has total assets under its management and control, exclusive of the $50 million threshold amount attributable to plan investment in the commingled entity, which are in excess of $100 million.
(2) In the case of two or more Plans which are not maintained by the same employer, controlled group of corporations or employee organization (the Unrelated Plans), whose assets are commingled for investment purposes in a group trust or any other form of entity the assets of which are “plan assets” under the Plan Asset Regulation, which entity is engaged in securities lending arrangements with the Borrowers, the foregoing $50 million requirement is satisfied if such trust or other entity has aggregate assets which are in excess of $50 million (excluding the assets of any Plan with respect to which the fiduciary responsible for making the investment decision on behalf of such group trust or other entity or any member of the controlled group of corporations including such fiduciary is the employer maintaining such Plan or an employee organization whose members are covered by such Plan). However, the fiduciary responsible for making the investment decision on behalf of such group trust or other entity—
(i) Has full investment responsibility with respect to plan assets invested therein; and
(ii) Has total assets under its management and control, exclusive of the $50 million threshold amount attributable to plan investment in the commingled entity, which are in excess of $100 million. (In addition, none of the entities described above are formed for the sole purpose of making loans of securities.)
(p) Prior to any Plan's approval of the lending of its securities to the Borrowers, a copy of this exemption (and the notice of pendency) is provided to the Plan, and the Borrower informs the independent fiduciary that the Borrower is not acting as a fiduciary of the Plan in connection with its borrowing securities from the Plan.
(q) The independent fiduciary of the Plan receives monthly reports with respect to the securities lending transactions, including but not limited to the information set forth in the following sentence, so that an independent Plan fiduciary may monitor such transactions with the Borrowers. The monthly report will list for a specified period all outstanding or closed securities lending transactions. The report will identify for each open loan position, the securities involved, the value of the security for collateralization purposes, the current value of the collateral, the rebate or premium (if applicable) at which the security is loaned, and the number of days the security has been on loan. At the request of the Plan, such a report will be provided on a daily or weekly basis, rather than a monthly basis. Also, upon request of the Plan, the Borrower will provide the Plan with daily confirmations of securities lending transactions.
(r) In addition to the above conditions, all loans involving Foreign Borrowers must satisfy the following supplemental requirements:
(1) Such Foreign Borrower is a bank which is subject to regulation by the Bank of England or is a registered broker-dealer subject to regulation by the UK SFA;
(2) Such Foreign Borrower is in compliance with all applicable provisions of Rule 15a-6 (17 C.F.R. 240.15a-6) under the Securities Exchange Act of 1934 (the 1934 Act) which provides foreign broker-dealers a limited exception from United States registration requirements;
(3) All collateral is maintained in United States dollars or in U.S. dollar-denominated securities or letters of credit, or other collateral permitted under PTE 81-6 (as amended or superseded);
(4) All collateral is held in the United States and the situs of the Borrowing Agreement is maintained in the United States under an arrangement that complies with the indicia of ownership requirements under section 404(b) of the Act and the regulations promulgated under 29 C.F.R. 2550.404(b)-1; and
(5) Prior to entering into a transaction involving a Foreign Borrower, Barclays or the Foreign Borrower must:
(i) Agree to submit to the jurisdiction of the United States;
(ii) Agree to appoint an agent for service of process in the United States, which may be an affiliate (the Process Agent);
(iii) Consent to the service of process on the Process Agent; and
(iv) Agree that enforcement by a Plan of the indemnity provided by Barclays or the Foreign Borrower will occur in the United States courts.
(s) Barclays or the Borrower maintains, or causes to be maintained, within the United States for a period of
(1) A prohibited transaction will not be considered to have occurred if, due to circumstances beyond the control of Barclays 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 the Borrower 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 below by paragraph (t)(1).
(t)(1) Except as provided in subparagraph (t)(2) of this paragraph and notwithstanding any provisions of subsections (a)(2) and (b) of section 504 of the Act, the records referred to in paragraph (s) are unconditionally available at their customary location for examination during normal business hours by—
(i) Any duly authorized employee or representative of the Department, the Internal Revenue Service or the Securities and Exchange Commission (SEC);
(ii) Any fiduciary of a participating Plan or any duly authorized representative of such fiduciary;
(iii) Any contributing employer to any participating Plan or any duly authorized employee representative of such employer; and
(iv) 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 (t)(1)(ii)-(t)(1)(iv) are authorized to examine the trade secrets of Barclays or its affiliates or commercial or financial information which is privileged or confidential.
(a) An “affiliate” of a person means:
(i) Any person directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with the person. (For purposes of this paragraph, the term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual);
(ii) Any officer, director, employee or relative (as defined in section 3(15) of the Act) of any such other person or any partner in any such person; and
(iii) Any corporation or partnership of which such person is an officer, director or employee, or in which such person is a partner.
(b) The term “Foreign Borrower” or “Foreign Borrowers” means Barclays Capital Securities Limited and any broker-dealer or bank that, now or in the future, is an affiliate of Barclays which is subject to regulation by the UK SFA or the Bank of England.
(c) The term “Borrower” includes Barclays, BCI, the Foreign Borrowers and any other affiliate of Barclays that, now or in the future, is a U.S. registered broker-dealer or a government securities broker or dealer or U.S. bank.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption (the Notice) published on June 28, 2001 at 66 FR 34475.
The Department received one comment letter with respect to the Notice. The comment letter was submitted by Barclays Bank PLC and certain of its affiliates (the Applicants). The Applicants made three comments that concerned minor modifications to the language of the exemption, as proposed.
First, the Applicants requested that the word “remaining” be deleted from the second sentence in Section II(e) of the Notice. Second, the Applicants requested that the term “financial statements” in Section II(j) of the Notice be replaced with the term “statements of financial condition” in the final exemption. Finally, the Applicants requested that the following language be added to the end of the sentence in Section II(r)(3) of the Notice: “or such other collateral as may be permitted under PTE 81-6 from time to time.”
The Department concurs with the Applicants' comments and suggested changes, and has modified the language of the final exemption accordingly.
After giving full consideration to the entire record, including the written comments from the Applicants, the Department has decided to grant the exemption, as modified herein.
Karen Lloyd of the Department, telephone (202) 219-8194. (This is not a toll-free number.)
The restrictions of sections 406(a), 406(b)(1) and (b)(2) and section 407(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 (E) of the Code, shall not apply, effective November 1, 2000, to (1) the receipt, by the Plan, of Stock Appreciation Income Linked Securities (SAILS), in exchange for common stock in Columbia Energy Group (Columbia Energy), the Plan sponsor; (2) the extension of credit by the Plan to NiSource, Inc. (NiSource), a party in interest, in connection with the receipt of the zero coupon bond portion of the SAILS; (3) the continued holding of the SAILS by the Plan; and (4) the potential sale of the SAILS by the Plan to NiSource.
This exemption is subject to the following conditions:
(a) The Plan automatically received the SAILS in exchange for its shares of Columbia Energy common stock, in accordance with the terms of an agreement and plan of merger, and it paid no fees or commissions in connection with its receipt of the SAILS and other merger consideration.
(b) All Columbia Energy shareholders, including Plan participants, received SAILS in the same manner, so that the Plan participants and beneficiaries were not in a less advantageous position than other Columbia Energy shareholders.
(c) The Plan's receipt of the SAILS resulted from shareholder approval and did not relate to any unilateral exercise of discretion by a Plan fiduciary.
(d) Morgan Stanley and Salomon Smith Barney, Inc. advised Columbia Energy that the consideration consisting of NiSource common stock, SAILS and cash for Columbia Energy common stock was “fair,” from a financial point of view.
(e) Duff & Phelps, Inc. provided Fidelity Investments, Inc., the Plan trustee (the Trustee), and the Plan's Savings Plan Committee with independent financial advice concerning the valuation of the SAILS.
(f) The Plan did not pay any fees or commissions in connection with the acquisition and holding of the SAILS, nor will it pay any fees or commissions if any SAILS are sold to NISource.
(g) An independent fiduciary, United States Trust Company, N.A. (U.S. Trust),
(1) Monitored the Plan's holding and disposition of the SAILS;
(2) Determined whether it was appropriate for the Plan to dispose of the SAILS (either on the open market or through a direct sale to NiSource) and instructed the Trustee regarding such disposition;
(3) Would determine, in the event of a sale of any SAILS to NiSource, the fair market value of such SAILS either (i) based on their closing price on the New York Stock Exchange (the NYSE) on the date of the transaction, or (ii) on the basis of an independent appraisal if the SAILS were not carried on the NYSE, or in the event it concluded that the closing price on the NYSE was not representative of the fair market value of the SAILS as of the transaction date; and
(4) Disposed of all SAILS held by the Plan on the NYSE before the end of calendar year 2001.
(h) The Plan would not be required to pay any fees or commissions in the event any SAILS were sold to NiSource.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption published on July 30, 2001 at 66 FR 39367.
The Department received one written comment with respect to the proposed exemption and no requests for a public hearing. The comment was submitted by a Plan participant who stated that she was initially given the choice of how she wanted her shares of Columbia Energy common stock converted. Although the commenter chose to exchange her Columbia Energy common stock for NiSource common stock, she ended up receiving both NiSource common stock and SAILS. The commenter declared this form of consideration to be unacceptable to herself and to other Plan participants who were treated similarly. The commenter also questioned whether participants who received SAILS would be again taken advantage of by not having a choice or say in the matter and she suggested that Columbia Energy provide meetings and clearer explanations to questions in layman's terms so that all parties involved could make informed choices.
Columbia Energy responded to the commenter's concerns by stating that the Trustee and the Plan fiduciaries had acted prudently and in the best interests of the Plan participants with respect to the subject transactions. In this regard, Columbia Energy noted that the Plan was treated in the same manner as any other holder of Columbia Energy common stock that had made a valid election to receive NiSource common stock in exchange for Columbia Energy common stock, or to receive consideration in the form of cash and SAILS, in exchange for Columbia Energy common stock. Columbia Energy also noted that due to uncertainty on whether the SAILS constituted qualifying employer securities, the Trustee was required, under the terms of the Trust Agreement and applicable law, to override all Plan participant elections to receive cash and SAILS consideration, and to elect, in the alternative NiSource common stock. However, because a large number of Columbia Energy's shareholders elected to receive NiSource common stock, the stock elections had to be prorated. Thus, Columbia Energy explained that the Plan (and Plan participants) ultimately received SAILS, in addition to shares of NiSource common stock, and cash. The SAILS were held in a separate fund, which was not subject to participant direction, and disposed of during the 2001 calendar year.
To protect the interests of the Plan participants, Columbia Energy indicated that it retained U.S. Trust to serve on behalf of the Plan as an independent fiduciary and oversee the Plan's holding and eventual disposition of the SAILS on the NYSE. As a result of such disposition, Columbia Energy stated that each Plan participant received the proceeds attributable to the number of SAILS held in the participant's SAILS account, thereby entitling the participant to direct the proceeds into one or more investment options under the Plan.
Because the Plan has already disposed of all SAILS it held on the NYSE rather than selling them directly to NiSource, the Department has decided to modify Conditions (g) and (h) of the proposed exemption to reflect more accurately the role of U.S. Trust and what actually transpired. Thus, Conditions (g) and (h) of the final exemption have been revised to read as follows:
(g) An independent fiduciary, United States Trust Company, N.A. (U.S. Trust),
(1) Monitored the Plan's holding and disposition of the SAILS;
(2) Determined whether was appropriate for the Plan to dispose of the SAILS (either on the open market or through a direct sale to NiSource) and instructed the Trustee regarding such disposition;
(3) Would determine, in the event of a sale of any SAILS to NiSource, the fair market value of such SAILS either (i) based on their closing price on the New York Stock Exchange (the NYSE) on the date of the transaction, or (ii) on the basis of an independent appraisal if the SAILS were not carried on the NYSE, or in the event it concluded that the closing price on the NYSE was not representative of the fair market value of the SAILS as of the transaction date; and
(4) Disposed of all SAILS held by the Plan on the NYSE before the end of calendar year 2001.
(h) The Plan would not be required to pay any fees or commissions in the event any SAILS were sold to NiSource.
Accordingly, after giving full consideration to the entire record, including the written comment and clarifications noted above, the Department has decided to grant the exemption.
For further information regarding the comment and other matters discussed herein, interested persons are encouraged to obtain copies of the exemption application file (Exemption Application No. D-10977) the Department is maintaining in this case. The complete application file, as well as all supplemental submissions received by the Department, are made available for public inspection in the Public Disclosure Room of the Pension and Welfare Benefits Administration, Room N-1513, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210.
Ms. Jan D. Broady of the Department, telephone (202) 219-8881. (This is not a toll-free number.)
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 to which the exemptions 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) These exemptions are supplemental to and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transactional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the
(3) The availability of these exemptions is subject to the express condition that the material facts and representations contained in each application accurately describes all material terms of the transaction which is the subject of the exemption.
In accordance with Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
The U.S. Nuclear Regulatory Commission (Commission) has issued Amendment No. to Facility Operating License No. NPF-63 issued to Carolina Power & Light Company (CP&L, the licensee), which revised the Operating License (OL) and Technical Specifications (TS) for operation of the Shearon Harris Nuclear Power Plant, Unit 1 (HNP), located in Wake and Chatham Counties, North Carolina. The amendment is effective as of the date of issuance.
The amendment modified the OL and TS for HNP to reflect an increase in the licensed core power level to 2900 Megawatts (thermal), 4.5% greater than the current level.
The application for the amendment complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Notice of Consideration of Issuance of Amendment to Facility Operating License and Opportunity for a Hearing in connection with this action was published in the
The Commission has prepared an Environmental Assessment related to the action and has determined not to prepare an environmental impact statement. Based upon the environmental assessment, the Commission has concluded that the issuance of the amendment will not have a significant effect on the quality of the human environment (66 FR 51982).
For further details with respect to the action see (1) the application for amendment dated December 14, 2000, and supplements dated March 8, March 27, April 26, May 14, May 18, June 4, June 11, June 26, June 29, July 3, July 16 (2 letters), July 17, August 17, and September 20, 2001, (2) Amendment No. 107 to License No. NPF-63, (3) the Commission's related Safety Evaluation, and (4) the Commission's Environmental Assessment. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) has issued Amendment No. 89 to Facility Operating License (FOL) No. NPF-87 and Amendment No. 89 to FOL No. NPF-89 issued to TXU Electric (the licensee), which revised FOL Nos. NPF-87 and NPF-89 and the Technical Specifications for operation of the Comanche Peak Steam Electric Station (CPSES), Units 1 and 2, located in Somervell and Hood Counties, Texas. The amendments are effective as of the date of issuance.
The amendments modified FOL Nos. NPF-87 and NPF-89 and the Technical Specifications to increase the maximum licensed thermal power of CPSES, Units 1 and 2, to 3458 MWt, which represents an increase of approximately 1.4 percent of the currently licensed thermal power for CPSES, Unit 1, and an increase of approximately 0.4 percent for CPSES, Unit 2. In addition, the amendments remove Texas Municipal Power Agency (TMPA) from both Unit 1 and Unit 2 FOLs since transfer of partial ownership from TMPA to TXU was completed.
The application for the amendment, as supplemented, complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Notice of Consideration of Issuance of Amendment to Facility Operating License and Opportunity for a Hearing in connection with this action was
The Commission has prepared an Environmental Assessment related to the action and has determined not to prepare an environmental impact statement. Based upon the Environmental Assessment, the Commission has concluded that the issuance of the amendment will not have a significant effect on the quality of the human environment(66 FR 45065, dated August 27, 2001).
For further details with respect to the action see (1) the licensee's application for amendment dated April 5, 2001, as supplemented by letters dated June 28, August 2, and September 10, 2001; (2) Amendment No. 89 to FOL No. NPF-87 and Amendment No. 89 to FOL No. NPF-89; (3) the Commission's related Safety Evaluation; and (4) the Commission's Environmental Assessment. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the internet at the NRC Web site, http://www.nrc.gov/NRC/ADAMS/index.html. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to pdr@nrc.gov.
For the Nuclear Regulatory Commission.
On July 24, 2001, the Intermarket Trading System Operating Committee (“ITSOC”) submitted to the Securities and Exchange Commission (“Commission”), pursuant to Section 11A of the Securities Exchange Act of 1934 (“Act”),
The ITS Participants include the American Stock Exchange LLC) “Amex”), the Boston Stock Exchange, Inc. (“BDE”), the Chicago Board Options Exchange, Inc. (“CBOE”), the Chicago Stock Exchange, Inc. (“CHX”), the Cincinnati Stock Exchange, Inc. (“CSE”), the National Association of Securities Dealers, Inc. (“NASD”), the New York Stock Exchange, Inc. (“NYSE”), the Pacific Exchange, Inc. (“PCX”), and the Philadelphia Stock Exchange, Inc. (“PHLX”) (“Participants”).
The proposed amendment describes how the ARCA facility will interact with ITS. It provides a formula that the ARCA must comply with which limits both share volume and trade volume that the ARCA facility may execute using ITS. If the ARCA facility exceeds the limitations in the formula, the PCX must stop sending commitments originated by the ARCA facility for a month. The proposed amendment also provides that the PCX may prepare an analysis of the effect of the ceilings in the formula on the ability of the ARCA facility to access Participant markets via ITS. The terms for linking the ARCA facility to ITS have been discussed extensively and were agreed upon by the ITS Participants. As noted, the Commission received no comments in response to publication of the Eighteenth Amendment.
The Commission finds that the proposed amendment is consistent with the Act and the rules and regulations thereunder applicable to the ITS and, in particular, Sections 11A(a)(1)(C)(ii) and (D) of the Act,
The Commission believes that linking the ARCA facility to ITS will provide a new and potentially more efficient way to execute trading interest.
In addition, the Commission believes that the proposed amendment will be beneficial to brokers, dealer and investors because it facilitates the linkage of all markets through communication and data processing facilities.
For the Commission, by the Divison of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Amex proposes to extend for an additional 90 days its pilot program relating to facilitation cross transactions, described in detail in Item II.A. below. The text of the proposed rule change is available at the Office of the Secretary, Amex, and at the Commission.
In its filing with Commission, the Amex included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to extend for an additional 90 days its pilot program relating to member firm facilitation cross transactions approved by the Commission on July 11, 2001.
Under the current program, when a trade takes place at the market provided by the crowd, all public customer order on the specialist's book or represented in the trading crowd at the time the market was established must be satisfied first. Following satisfaction of any customer orders on the specialist's book, the floor broker is entitled to facilitate up to 20% of the contracts remaining in the customer order. When a floor broker proposes to execute a facilitation cross at a price between the best bid and offer provided by the crown in response to his initial request for a market—and the crown then wants to take part or all of the order at the improved price—the floor broker is entitled to priority over the crowd to facilitate up to 40% of the contracts. If the floor broker has proposed the cross at a price between the best bid and offer provided by the crown in response to his initial request for a market, and the trading crown subsequently improves the floor broker's price, and the facilitation cross is executed at that improved price, the floor broker would only be entitled to priority to facilitate up to 20% of the contracts.
The program also provides that if the facilitation transaction takes place at the specialist's quoted bid or offer, any participation allocated to the specialist pursuant to Amex trading floor practices would apply only to the number of contracts remaining after all public customer orders have been filled and the member firm's crossing rights have been exercised.
In the sixteen months since the pilot program was first implemented, the Exchange has found it to be generally successful. The Exchange seeks to extend the pilot program for an additional 90 days, pending consideration of a related proposed rule change it has filed with Commission
In order to allow the pilot program to be extended without significant interruption, the Amex has requested that the Commission expedite review of, and grant accelerated approval to, the proposal to extend it, pursuant to Section 19(b)(2) 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 impose no burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
Interest 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 the filing will also be available for inspection and copying at the principal offices of the Exchange. All submissions should refer to File No. SR-Amex-2001-84 and should be submitted by November 13, 2001.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission finds good cause, consistent with Sections 6(b) and 19(b)(2) of the Act, for approving the proposed rule change prior to the thirtieth day after the date of publication of the notice of filing thereof in the
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend BSE Chapter XXIV-A, (“Trust Issued Receipts” (hereinafter, “TIRs”)), to provide generic standards that permit the listing and trading, or the trading pursuant to unlisted trading privileges (“UTP”), of TIRs pursuant to Rule 19b-4(e) under the Act. In addition, the Exchange proposes to adopt eligibility requirements for component securities that are represented by a series of TIRs pursuant to distribution or other corporate event. Below is the text of the proposed rule change. Proposed new language is italicized.
(b)
(c)
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its listing and trading standards for TIRs under BSE Chapter XXIV-A in two parts. First, the Exchange proposes to provide generic standards that permit the listing and trading, or trading pursuant to UTP, or TIRs, pursuant to Rule 19b-4(e) under the Act.
(b) received in exchange for the securities of a company previously included as a component security that are no outstanding due to a merger, consolidation, corporate combination or other event.
On January 13, 2000, the Exchange received approval to adopt BSE Chapter XXIV-A,
The Commission has previously approved rules of other exchanges that permit the listing and trading of individual TIRs.
The Exchange represents that BSE Chapter XXIV-A subjects TIRs to all of the Exchange's trading rules by expressly providing that the provisions of the Exchange's Constitution and all other rules and policies of the Board of Governors apply to the trading of TIRs on the Exchange.
Under the
The Exchange believes that these additional criteria to the listing and trading standards for TIRs will ensure that no component security in a TIR product will be readily susceptible to manipulation, while permitting sufficient flexibility in the construction of various TIRs to meet investors' needs. These criteria also will ensure sufficient liquidity for those investors seeking to purchase and deposit the component securities with the trustee to create a new TIR.
The Exchange proposes to use existing surveillance procedures for the Trust Issued Receipts that it trades pursuant to Rule 19b-4(e). In addition, the Exchange will comply with the recordkeeping requirements of Rule 19b-4(e),
The Exchange proposes that TIRs are subject to the Exchange's rule relating to trading halts due to extraordinary market volatility (BSE Chapter II, Section 34A) and the Exchange's rule that provides discretion to Exchange officials to halt trading in specific securities under certain circumstances (BSE Chapter II, Section 34B). In exercising the discretion described in BSE Chapter II, Section 34B, appropriate Exchange officials may consider a variety of factors, including the extent to which trading is not occurring in a stock underlying the portfolio and whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present.
Further, the Exchange proposes that it will distribute an information circular to its members in connection with the trading of TIRs. It will discuss the special characteristics and risks of trading this type of security, including the fact that TIRs are not individually redeemable. Specifically, the circular, among other issues, will discuss what TIRs are, how they are created, the requirement that member and member firms deliver a prospectus to investors purchasing TIRs prior to or concurrently with the confirmation of a TIRs transaction, applicable BSE rules, dissemination information, trading information, and the applicability of suitability rules. In addition, the circular will inform members of specific BSE policies, such as trading halts and market conditions particular to such securities.
Recently, the American Stock Exchange LLC (“Amex”) revised its rules relating to the distributions of securities by component securities in a Trust.
As a result of this change, the Exchange proposes that a security, which is automatically deposited into the Trust as a result of a distribution or a corporate event, may remain in the Trust even though it does not meet all of the initial eligibility requirements set forth in proposed
The Exchange proposes that the eligibility requirements for such component securities are the following: (1) That such component security must be listed on national securities exchange or traded through the facilities of Nasdaq and a reported national market system security; (2) that such component security must be registered under Section 12 of the Exchange Act; and (3) that such component security must have a Standard & Poor's Sector Classification that is the same as the Standard & Poor's Sector Classification represented by component securities already included in the TIRs at the time of the distribution or exchange.
The Exchange believes that it is appropriate in these limited situations to provide alternate eligibility criteria for the component securities. To reduce the number of distributions of securities from the TIR, which may cause inconvenience and increased transaction and administrative costs for investors, the Exchange believes that it is useful to allow certain securities that are received as part of a distribution from a company or as the result of a merger, consolidation, corporate combination or other event to remain in the TIR. The Exchange believes that the proposed eligibility requirements ensure that component securities included in a TIR as a result of a distribution or exchange event are widely held (having been distributed to all of the shareholders holding the original component security), traded through the facilities of an exchange or Nasdaq and registered under Section 12 of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. 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 them 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 at the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the BSE. All submissions should refer to File No. SR-BSE-2001-05 and should be submitted by November 13, 2001.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act
By establishing generic listing standards, the proposal should reduce the BSE's regulatory burden, as well as benefit the public interest, by enabling the BSE to bring qualifying products to the market more quickly. Accordingly, the Commission finds that BSE's proposal should promote just and equitable principles of trade, foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, and, in general, protect investors and the public interest consistent with Section 6(b)(5) of the Act.
As described above, the Commission has previously approved similar Amex, CHX, and PCX rules that permit the generic listing and trading of individual TIRs.
The Commission notes that the BSE's proposed standards are substantially similar to the Amex, CHX and PCX standards. The Commission therefore believes that TIRs that satisfy the BSE's proposed standards should produce the same benefits to the BSE and to investors.
The Commission further believes that adopting generic listing standards for these securities pursuant to Rule 19b-4(e) under the Act should fulfill the intended objective of the Rule by giving the BSE the ability to potentially reduce the time frame for bringing these securities to the market, or for permitting the trading of these securities pursuant to UTP, and thus enhances investors' opportunities. The Commission notes that it maintains regulatory oversight over any products listed under the generic standards through regular inspection oversight.
The Commission finds that the BSE's proposal contains adequate rules and procedures to govern the listing and trading of TIRs pursuant to Rule 19b-4(e) on the BSE, or pursuant to UTP. All TIR products listed under the standards will be subject to the full panoply of BSE rules and procedures that now govern both the trading of TIRs and the trading of equity securities on the Amex, CHX, and the PCX including, among others, rules and procedures governing trading halts, disclosures to members, responsibilities of the specialist, account opening and customer suitability requirements, the election of a stop or limit order, and margin.
The Commission further finds that: (1) By requiring that the component securities in a TIR be registered under Section 12 of the Act and listed on a national securities exchange or Nasdaq, and (2) by establishing minimum values for the number of outstanding receipts, average daily trading volume, average daily dollar volume, and public float, the Exchange's proposed listing criteria will help to ensure that a minimum level of liquidity will exist to allow for the maintenance of fair and orderly markets for those TIRs listed and traded pursuant to Rule 19b-4(e). The Commission believes that these listing criteria will help to ensure that no component security a TIR will be readily susceptible to manipulation, while permitting sufficient flexibility in the construction of various trust issued receipts to meet investors' needs. The Commission further believes that these criteria should serve to ensure that the component securities of such TIRs are well capitalized and actively traded, which will help to ensure that U.S. securities markets are not adversely affected by the listing and trading of new TIRs under Rule 19b-4(e). Accordingly, the Commission finds that these criteria are consistent with Section 6(b)(5) of the Act,
Additionally, as the Commission noted in its previous review and approval of Amex, CHX and the PCX Rules, the Exchange's delisting criteria allows it to consider the suspension of trading and the delisting of a TIR if an event occurs that makes further dealings in such securities inadvisable. This will give the Exchange flexibility to delist TIRs if circumstances warrant.
The Commission notes that, in connection with its previous review and approval of Amex, CHX and PCX Rules, it approved similar applicable minimum price increments, surveillance procedures, and disclosure and prospectus delivery requirements for TIRs.
The BSE has noted that it will file Form 19b-4(e) with the Commission within five business days of commencement of trading a TIR under the listing standards and will comply with all Rule 19b-4(e) recordkeeping requirements.
Finally, the Commission finds that the BSE's proposal to provide an alternative eligibility criteria for component securities received as part of a distribution or as a result of a merger, consolidation, corporate combination or other event to remain in the Trust will prevent fraudulent and manipulative acts and practices, promote just and equitable principles of trade, facilitate transactions in securities, remove impediments to and perfect the mechanism of a free and open market
Thus, the Commission finds good cause for approving the proposed rule change (SR-BSE-2001-05) prior to the thirtieth day after the date of publication of notice thereof in the
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The ISE is proposing changes to its fee schedule (i) to replace a $1,650 “enhanced cabinet charge” with a $250 incremental fee per server in an enhanced cabinet; (ii) to broaden the definition of “cabinet removal” and “router installation/removal” charges to include “moves, adds or changes”; and (iii) to impose a fee for providing reports to brokers on quarterly statistics relating to their order routing practices.
In its filing with the Commission, the ISE included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The ISE has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to effect the following changes in the ISE's fees:
Cabinets: One method by which ISE members connect to the Exchange is through ISE equipment located in cabinets on the members' sites. The ISE charges for this equipment based on, among other things, the number of servers in a cabinet. To provide more flexibility in this pricing, the ISE proposes to replace its “enhanced cabinet charge” with an incremental charge per server that is added to the base cabinet. The incremental fee will be $250 per server, equivalent to the $250 incremental fee per server in an enhanced cabinet. This will permit members to add more than one additional server per cabinet.
Also, the ISE is sometimes requested to reconfigure and relocate member equipment. Thus, the ISE proposes to broaden the definition of the “cabinet removal” and “router installation/removal” charges. These fees would encompass any “moves, adds or changes” to ISE equipment at a members' site, and would cover the Exchange's costs for providing these services.
Reports: Newly-adopted Commission Rule 11Ac1-6
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The Exchange has designated the proposed rule change as a fee change pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. 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 ISE. All submissions should refer to File No. SR-ISE-2001-25 and should be submitted by November 13, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq is proposing to amend NASD Rule 7010(p) to modify the fees charged for historical research reports provided through Nasdaq's NasdaqTrader.com web site, and to establish a fee for licensing the redistribution of information contained in such reports. The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets.
(a)-(o) No change
(p) Historical Research and Administrative Reports
[(1)]
[(2)]
[(3)]
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
In 2000, Nasdaq established a fee structure for providing historical research reports pertaining to Nasdaq, OTC Bulletin Board or other OTC issues to investors.
Currently, historical research reports are divided into two categories: “Daily Detailed Reports” and “Summary Level Activity Reports.” Examples of Daily Detailed Reports include a Market Maker Price Movement Report (displays all market maker quote changes and the best bid and offer throughout a chosen day for a selected security), and a Time and Sales Report (provides a record of media-reported trades in the selected security, indicating the reported time, price and share volume). Summary Level Activity Reports provide trade and/or quote information over a monthly or quarterly period. Fees for the Daily Detailed Reports are set on a two-tiered basis, based on the number of data fields contained in the report. Examples of fields, depending on the type of report chosen, include reported volume, reported price, reported time, inside bid/ask, short sale indicator, etc. Nasdaq assesses a fee of $7 for reports
Nasdaq believes that this system for distributing historical research reports has been a successful method of providing beneficial information to customers in an efficient manner. However, Nasdaq believes that the fee structure for these reports should more clearly differentiate among the varieties of reports that are provided to customers, with prices that are calibrated to the size of the report, the frequency with which the report is provided, and the type of information contained in the report. Accordingly, Nasdaq is proposing a new fee schedule for historical research reports relating to Nasdaq securities.
As is true under the current rule, the price of reports varies with the fields of information contained in the report. The new proposed schedule would assess different fees for reports with 1 to 10 fields of information, 11 to 15 fields, and 16 or more fields. The proposed fee schedule would also introduce categories for a wider variety of reports than are reflected in the current fee schedule.
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•
•
•
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The proposed fee schedule would also allow Nasdaq to offer discounted subscription pricing to customers who wish to subscribe to receive a daily report for each day of a month. The price would be the applicable per day price for the report, multiplied by twenty. Thus, in a month with more than twenty trading days, the reports would be received at a discount. Similarly, the price for a quarterly subscription would be the applicable per day price for the report multiplied by 60, and the price for an annual subscription would be the applicable per day price for the report multiplied by 240.
The purchase of an historical research report relating to a Nasdaq security does not currently provide the purchaser with a license to redistribute the data from the report to other persons. However, Nasdaq has received numerous requests from various organizations—primarily organizations that provide research and analytical products to institutional investors, individual investors and market participants—that wish to redistribute such data to their customers. Although in some cases (
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A(b)(5)
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
A. by order approve such proposed rule change, or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change 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 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 Nasdaq. All submissions should refer to file number SR-NASD-2001-59 and should be submitted by November 13, 2001.
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 PCX proposes to adopt Rule 6.87(p) permitting split-price executions. Below is the text of the proposed rule change. Proposed new language is
Rule 6.87(a)-(m)—No change.
In its filing with the Commission, the PCX included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The PCX has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The proposed rule change will permit split-price executions of Auto-Ex orders when the book represents the best PCX market and is for a size less than the Auto-Ex guaranteed size for the issue.
If the bid or offer generated by the Exchange's Auto-Quote system (or any Exchange approved proprietary quote generation system used in lieu of the Exchange's Auto-Quote system) crosses or locks the Exchange's best bid or offer established by an order in the Exchange's customer limit order book, or is outside the NBBO, then Auto-Ex orders for options of that series will not be automatically executed but instead will be rerouted to Floor Broker Hand-Held Terminals or to another location in the event of system problems or contrary firm routing instructions. These rerouted orders will be executed in accordance with Rule 6.86.
Currently, when the book represents the best PCX market and is for a size less than the Auto-Ex guaranteed size for the issue, the incoming Auto-Ex order will be executed against the actual book size and the balance of the order up to the Auto-Ex guarantee size for the issue will be assigned to Market Makers on the Auto-Ex wheel at the same price that the initial portion of the order was executed. For example, assume the Auto-Ex guarantee is 100 and the firm quote size is 20. If the book contains an order for one contract that represents the best bid, an incoming market order to sell 100 contracts will execute against the book for one contract and then against Market Makers logged onto Auto-Ex for 99 remaining contracts at the book price, regardless of the trading crowd's best bid. Under the split-price execution proposal, 19 contracts of the sell order will be assigned to Market Makers logged onto Auto-Ex for sale at the book price and the balance of the order will be executed at the next prevailing bid or offer,
The Exchange believes that this proposal is ocnsistent with Section 6(b)
The Exchange does not believe that the proposed rule change will impose any burden on competition.
Written comments on the proposed rule change were neither solicited nor received.
Because the foregoing proposed rule change: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) does not become operative for 30 days after the date of filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
The PCX did not request that the Commission waive the 30-day delay in the operative date of the proposed rule change pursuant to Section 19(b)(3)(A)(iii) under the Act. Accordingly, the proposed rule change became operative on October 1, 2001.
At any time within 60 days of the filing of the proposed rule change, as amended, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. 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
All submissions should refer to File No. SR-PCX-2001-35 and should be submitted by November 13, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On August 9, 2001, the Philadelphia Stock Exchange, Inc. (“Phlx” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission finds that the proposed rule change is consistent with the requirements of Section 6 of the Act
The Commission also finds that the proposed rule change is consistent with Section 6(b)(4) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to the delegated authority.
The Social Security Administration (SSA) publishes a list of information collection packages that will require clearance by the Office of Management and Budget (OMB) in compliance with Pub. L. 104-13 effective October 1, 1995, The Paperwork Reduction Act of 1995. SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility and clarity; and on ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology.
Written comments and recommendations regarding the information collection(s) should be submitted to the OMB Desk Officer and the SSA Reports Clearance Officer and at the following addresses:
I. The information collections listed below will be submitted to OMB within 60 days from the date of this notice. Therefore, your comments should be submitted to SSA within 60 days from the date of this publication. You can obtain copies of the collection instruments by calling the SSA Reports Clearance Officer at 410-965-4145, or by writing to him at the address listed above.
1. Employer Report of Special Wage Payments—0960-0565. The Social Security Administration (SSA) gathers the information on Form SSA-131 to prevent earnings related overpayments to employees and to avoid erroneous withholding. The respondents are employers who provide special wage payment verification.
II. The information collections listed below have been submitted to OMB for clearance. Your comments on the information collections would be most useful if received by OMB and SSA within 30 days from the date of this publication. You can obtain a copy of the OMB clearance packages by calling the SSA Reports Clearance Officer on (410) 965-4145, or by writing to him at the address listed above.
1. Representative Payee Report—0960-0068. Sections 205(j) and 1631(a)(2) provide for the payment of Social Security and Supplemental Security Income benefits to a relative, another person or an organization (referred to as representative payee) when the best interests of the beneficiary would be served. These sections also provide that SSA monitor how the benefits were used. SSA uses forms SSA-623 and SSA-6230 to collect this information. SSA needs the information to determine whether the payments provided to the representative payee have been used for the beneficiary's current maintenance and personal needs and whether the representative payee continues to be concerned with the beneficiary's welfare. The respondents are representative payees designated to receive funds on behalf of Social Security and Supplemental Security Income (SSI) recipients.
2. Reporting Events, SSI—0960-0128. SSI applicants, recipients and their representative payees use Form SSA-8150-EV (or the Spanish version) to report by mail changes in circumstances that could affect eligibility for SSI. SSA uses the reported changes on the form to determine eligibility and correct payment amounts for SSI payments, which may include federally administered State supplementary payments. The respondents are SSI applicants, recipients, and their representative payees.
The United States Department of State announces an open competition for an assistance award. Nongovernmental organizations may apply to design and manage a multi-faceted program that consists of (1) U.S.-based professional internships, (2) Africa-based AGOA workshops.
AGOA (Africa Growth and Opportunity Act), signed into law in May 2000, offers qualifying African countries preferential access to U.S. markets for their industries. The countries participating in AGOA are positioned in varying degrees to take advantage of the bill. Some, such as South Africa and Mauritius, have well-developed light industrial sectors poised to begin exporting to U.S. markets. Others have little industry positioned to compete and no immediate prospects. All have indicated enthusiasm for the possibilities offered by AGOA, tempered by the realization that the African private sector needs more exposure to U.S. markets, business practices, and trade associations before they will be able to access U.S. markets and develop viable two-way trade relationships and thereby realize the full benefits of AGOA.
The program will provide medium and small African business entrepreneurs and members of business associations exposure to AGOA and to the American market in order to increase capacity to develop new African-U.S. trade linkages. The program will give them an understanding of American business norms and actual practices, provide them with knowledge of U.S. customs operations, product distribution and retailing, and, finally, help them develop business linkages and relationships with manufacturers and businesses in their respective sectors. The grant will fund a two-part program to offer African entrepreneurs both exposure to U.S. markets and the opportunity to share their insights and knowledge with business associations and other entrepreneurs upon returning home.
The AF/PD AGOA Professional Internship Program is designed to enhance the professional skills and abilities of the participants and assist them in understanding the variety, depth, and practices of the American market and also provide them with an introduction to American entrepreneurs and trade associations.
The contract agency will be expected to work closely with AF/PD and Public Affairs Sections of U.S. Embassies in Africa in developing and implementing this program.
Eligible applicants include all nongovernmental institutions, private organizations, and commercial entities.
The funding level for this Cooperative Agreement shall be no higher than $750,000. Award of this cooperative agreement is based on the availability of funds for fiscal year 2002. A final award will not be made until funds appropriated by Congress are available through internal Department of State procedures.
Continuing awards within the project period will be made on the basis of satisfactory progress and the availability of funds.
Periodic progress reports and a final evaluation will be required.
Technically eligible applicants will be competitively reviewed under 6 criteria. The criteria are: (1) Cost effectiveness and cost sharing; (2) Program planning and ability to achieve objectives; (3) Institutional capacity; (4) Program monitoring; (5) Program evaluation (6) Support of diversity.
Projects that involve the collection of information from 10 or more individuals and funded by the cooperative agreement will be subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act.
The original and ten (10) copies of the application (Standard Form 424) must be submitted to the U.S. Department of
A detailed program description and application package may be obtained from Ms. Joanna Pisciotta Snearly, Grants Officer, U.S. Department of State, A/LM/AQM/IP, State Annex #44, Room M-22, 301 4th Street SW, Washington, DC 20547, telephone (202) 260-6549, fax (202) 205-5466 email
Tennessee Valley Authority (Meeting No. 1535).
9 a.m. (CDT), October 24, 2001.
Jackson State Community College, McWherter Building—Ayers Auditorium, 2046 North Parkway, Jackson, Tennessee.
Open.
Approval of minutes of meeting held on September 19, 2001.
A1. Fiscal year 2001 Financial Review and Asset Valuation Recommendation.
A2. Retention of Net Power Proceeds and Nonpower Proceeds and Payments to the U.S. Treasury.
C1. Delegation of authority to the Vice President of Fuel Supply and Engineering Services to award a term contract to Crounse Corporation for barging services to Paradise Fossil Plant.
C2. Term coal contract with U.S. Coal, Inc., for coal supply to Kingston Fossil Plant.
C3. Contract with ALSTOM Power, Inc., to provide for the design, engineering, fabrication, and supply of boiler pressure parts and components for Bull Run Fossil Plant.
C4. Supplement to Contract No. 1601 with Braden Manufacturing, L.L.C., for design, supply, and installation of replacement inlet air duct systems on TVA-owned General Electric combustion turbines at Colbert and Johnsonville combustion turbine sites.
F1. Approval to file condemnation cases to acquire transmission line easement rights-of-way and the right to enter affecting Tract No. KD2, Kemper-DeKalb Transmission Line in Kemper County, Mississippi, and Tract Nos. SWM-1000TE, 1001TE, and 1003TE, Sweetwater-Madisonville Transmission Line in Monroe County, Tennessee.
1. Supplement to contract for communication services with Media South LLC.
2. Delegation of authority to arrange for third-party long-term financing for energy services contracts through sales of accounts receivable.
3. Implementation of the results of negotiations with the Engineering Association, Inc., over compensation for Fiscal Years 2001 and 2002.
4. Manager and Specialist and Excluded Schedule annual performance award budget and pay band structure adjustment.
5. Negotiated pay adjustments for Fiscal Year 2002 for SA and SB employees represented by the Office and Professional Employees International Union.
6. Pay benefits for TVA employees called to active duty.
7. TVA contribution to the TVA Retirement System for Fiscal Year 2002.
8. Sale of an exclusive and transferable permanent easement for future development of a medical technology corridor for the City of Johnson City, Tennessee.
9. Amendments to the Rules and Regulations of the TVA Retirement System and to the provisions of the TVA Savings and Deferral Retirement Plan (401(k) Plan).
For more information: Please call TVA Media Relations at (865) 632-6000, Knoxville, Tennessee. Information is also available at TVA's Washington Office (202) 898-2999. People who plan to attend the meeting and have special needs should call (865) 632-6000.
Coast Guard, DOT.
Notice of meetings.
The Chemical Transportation Advisory Committee (CTAC) and its Subcommittees will meet to discuss various issues relating to the marine transportation of hazardous materials in bulk. All meetings will be open to the public. These meetings were originally scheduled for September 12-14, 2001.
CTAC will meet on Wednesday, November 28, from 9 a.m. to 3 p.m. The Subcommittees on Prevention Through People (PTP) and Hazardous Substances Response Standards will meet on Tuesday, November 27, 2001, from 8:30 a.m. to 4 p.m. The Subcommittee on Vessel Cargo Tank Overpressurization will meet on Thursday, November 29, 2001, from 9 a.m. to 3:30 p.m. These meetings may close early if all business is finished. Written material and requests to make oral presentations should reach the Coast Guard on or before November 16, 2001. Requests to have a copy of written material distributed to each member of the Committee or Subcommittee should reach the Coast Guard on or before November 20, 2001.
CTAC will meet in room 2415, U.S. Coast Guard Headquarters, 2100 2nd Street, SW., Washington, DC. The PTP Subcommittee and the Hazardous Substances Response Standards Subcommittee will meet at Coast Guard Headquarters in room 5303 and 2415, respectively. The Vessel Cargo Tank Overpressurization Subcommittee will meet at the Department of Transportation Headquarters, Nassif Building, 400 7th Street, SW., Washington, DC in room 3328. Send written material and requests to make oral presentations to Commander James M. Michalowski, Commandant (G-MSO-3), U.S. Coast Guard Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001. This notice is available on the Internet at http://dms.dot.gov.
Commander James M. Michalowski, Executive Director of CTAC, or Ms. Sara S. Ju, Assistant to the Executive Director, telephone 202-267-1217, fax 202-267-4570.
Notice of these meetings is given under the
(1) Introduction of Committee members and attendees.
(2) Progress Reports from the PTP, Hazardous Substances Response Standards, and Vessel Cargo Tank Overpressurization Subcommittees.
(3) Presentation on the Millennium Class Tanker.
(4) Presentation by a Guest Speaker on “Expansive Imbibition for Practical Pollution Particulation or Separating Things from Stuff.”
(5) Coast Guard update on Cargo Authority Lists for the New Coast Guard MISLE Database.
(6) Update of Coast Guard Regulatory Projects and IMO Activities.
(1) Continuation of work on the development of a risk management guide for the chemical transportation industry.
(1) Final development of recommendations to the Coast Guard concerning protocols for emergency chemical response.
(1) Continuing development of recommendations for an industry standard to address the prevention of cargo tank overpressurization during inerting, padding, purging, and line clearing operations.
All meetings are open to the public. Please note that the meetings may close early if all business is finished. At the Chairs' discretion, members of the public may make oral presentations during the meetings. If you would like to make an oral presentation at a meeting, please notify the Executive Director no later than November 16, 2001. Written material for distribution at a meeting should reach the Coast Guard no later than November 16, 2001. If you would like a copy of your material distributed to each member of the Committee or Subcommittee in advance of the meetings, please submit 25 copies to the Executive Director no later than November 20, 2001.
For information on facilities or services for individuals with disabilities, or to request special assistance at the meetings, contact the Assistant to the Executive Director of CTAC as soon as possible.
Federal Transit Administration, DOT.
Notice of intent to prepare a supplemental environmental impact statement (EIS).
The Federal Transit Administration (FTA) and the Central Puget Sound Regional Transit Authority (Sound Transit) intend to prepare a supplemental EIS in accordance with the National Environmental Policy Act (NEPA) on the Central Link Light Rail Transit project north corridor from Convention Place to Northgate. This is a supplemental EIS to the Central Link Light Rail Transit Project Final EIS (November 1999). The supplemental EIS will evaluate a no build alternative and light rail station and route options in three segments: Capitol Hill/South Lake Union (Convention Place Station to SR-520), Ship Canal crossing/University District (SR-520 to NE 45th Street), and the Northgate segment (NE 45th to Northgate). Scoping will be accomplished through meetings and correspondence with interested persons, organizations, the general public, federal, state and local agencies and tribes.
Written comments on the project scope of alternatives and impacts to be considered should be sent to James Irish, Sound Transit, 401 South Jackson St., Seattle, WA 98104-2826 by November 9, 2001. Scoping meetings will be held on the following days and locations.
John Witmer, Federal Transit Administration, 915 2nd Avenue Suite 3142, Seattle, WA 98174, Telephone: 206.220.7964 or James Irish, Sound Transit, 401 South Jackson St., Seattle, WA 98104-2826, Telephone: 206.398.5140.
The FTA and Sound Transit invite comments from interested individuals, organizations, and federal, state, regional and local agencies for a period of 30 days after publication of this notice (See
FTA and the Central Puget Sound Regional Transit Authority (Sound Transit) will prepare a supplemental EIS on route alternatives from Convention Place to Northgate. The study are will be divided into three segments: Capitol Hill/South Lake Union (Convention Place Station to SR-520), Ship Canal Crossing/University District (SR-520 to NE 45th Street), and the Northgate segment (NE 45th to Northgate). The supplemental EIS will address the no build alternative and the following light rail station and route options:
These include the adopted Capitol Hill route including Capitol Hill station alternatives, an Eastlake Avenue Route, a Bouren Avenue route, and a route bypassing First Hill with stations between Capitol Hill and First Hill and on 15th Avenue.
These include the Postage Bay tunnel adopted route, a Montlake tunnel route via the University of Washington's Rainier Vista, a tunnel route in the vicinity of the University bridge, and a high-and/or mid-level bridge.
Includes the two 8th Avenue route options, and the 12th Avenue route. A Notice of Intent was issued on April 16, 2001 to prepare a supplemental EIS for the Northgate segment (NE 45th to Northgate) to the project. That supplemental EIS has been terminated. Supplemental environmental review for the Northgate segment of the project will be incorporated in this new supplemental EIS.
This is a supplemental EIS to the Central Link Rail Transit Project Final EIS (November 1999). The FTA and Sound Transit will evaluate all significant environmental, social, and economic impacts of the alternatives analyzed in the supplemental EIS. Impacts will be evaluated for all issues evaluated in the original EIS.
This notice grants the application by Reliance Trailer Co., LLC, of Spokane, Washington (“Reliance”), for a temporary exemption of its dump body trailers from Federal Motor Vehicle Safety Standard No. 224
We published notice a of receipt of the application on July 10, 2001, affording an opportunity to comment (66 FR 36032).
In February 2001, Reliance acquired the assets of SturdyWeld, another Washington company, in order to commence manufacture of “trailers built to mate with asphalt paving equipment.” We observed that this appears to be a horizontal discharge trailer that is used in the road construction industry to deliver asphalt and other road building materials to the construction site. However, the sole commenter on the notice, Dan Hill & Associates, pointed out that the trailer is a “dump body/gravity feed” trailer. Dan Hill distinguishes this type of trailer as one that “can handle everything from 9-foot-plus slabs of concrete all the way down to sand, whereas * * * controlled horizontal discharge products are limited to the transportation of hot-mix asphalt and, on occasion, other related processed road-building materials under 2″ in size.”
Standard No. 224 requires, effective January 26, 1998, that all trailers with a GVWR of 4536 kg or more, including Reliance's trailers, be fitted with a rear impact guard that conforms to Standard No. 223
Reliance is a small volume manufacturer whose total production in the 12-month period preceding its petition was 268 trailers. In the absence of an exemption, Reliance says that “considering the over $2 million paid for the [SturdyWeld] Division and if we are able to sell the over $1 million inventory, but have to shut this operation down, we would probably lose over $1 million.” Reliance's cumulative net income after taxes for the fiscal years 1998, 1999, and 2000 was $150,793.
Reliance apparently learned of its compliance problem after producing 26 of the trailers in question. It has determined that these trailers fail to comply with Standard No. 224, and has notified NHTSA pursuant to 49 CFR Part 573. It has also filed a petition for a determination that the noncompliance is inconsequential to safety. Reliance has also discovered that “this is a nationwide, yet unsolved, problem,” citing three manufacturers of similar trailers who have received temporary exemptions from Standard No. 224, Beall Trailers, Red River Manufacturing, and Dan Hill Associates.
The petition discusses “possible alternative means of compliance” which “will include the analysis of moveable, replaceable or retractable under-rides. To date these concepts are very difficult to maintain due to the nature of the paving material.” After discussion with its customers, Reliance “will proceed to design, build and test prototype designs to meet the regulations and allow dumping asphalt into paving equipment.” It believes that it will comply by the end of a two-year exemption period.
Reliance argues that an exemption would be in the public interest and consistent with traffic safety objectives because the trailers “represent about 80% of the output of the 38 employees' of the SturdyWeld division, and “if this petition is denied, the operation will be closed and those people will be out of jobs.” An exemption would allow it “to continue to provide equipment needed by road building industries to expand
The trailers will be built in small quantities. “Typical hauls are short” with a minimal amount of time traveling on highways compared with most freight trailers,” which ”diminishes the exposure for these vehicles.” Reliance knows of no rear end collisions and consequent injuries with its type of trailer.
In commenting on the application, Dan Hill did not “take a position to either support or criticize Reliance/SturdyWeld's application for a temporary exemption.”
As we understand it, Reliance acquired SturdyWeld in order to enter the dump body trailer market. The trailers did not comply with Standard No. 224, and Reliance has asked for a temporary exemption of two years, at the end of which it believes it will comply. In the meantime, it could not sell dump body trailers, and might lose more than half of its investment of $2 million in SturdyWeld. Such a loss would presage a negative effect on its net income, which, on a three-year cumulative basis is $150,793. These factors indicate that to require immediate compliance would create substantial economic hardship.
We must also find that an applicant has made a good faith effort to comply with the standard from which exemption has been requested. Understandably, if Reliance only recently learned of its noncompliance, its compliance efforts are only in the early stages. The applicant referred to compliance as “a nationwide, yet unsolved, problem,” and cited three manufacturers who had received temporary exemptions from Standard No. 224: Dan Hill, Red River Manufacturing, and Beall Trailers of Washington, Inc.
In its comment, Dan Hill distinguished between horizontal discharge trailers of the type that it and Red River manufactures (“a market that consists of fewer than 400 unit sales per year”), and dump-type trailers manufactured by the applicant, Beall Trailers, and others (“on the average, 7.451 units per year (Source: The U.S. Census Bureau, measurement period 1991 through 1997).” It would appear, then, that the factual situation in the Beall exemption might afford an appropriate comparison.
We granted Beall NHTSA Temporary Exemption No. 98-5 on July 8, 1998 (63 FR 36989), and extended it to August 1, 2001 (66 FR 22069). Beall was similar in size to Reliance. It had produced 311 trailers in the year preceding the filing of its petition, of which 124 were dump body types. Its average net income for 1995, 1996, and 1998 was slightly lower than Reliance's cumulative figure (The figure reported for 1997 was a before-taxes number). Both its original petition and petition for renewal recounted difficulties in developing a rear impact guard that was compatible with paving equipment, including hinged, retractable devices. Although Beall's exemption has expired, the company has indicated that it will have to apply for a further exemption. Beall's experience indicates that compliance by dump body trailers with Standard No. 224 can be a complex matter. Thus, the term of the exemption we are granting Reliance is the two years that it requested.
We must also find that an exemption would be in the public interest and consistent with the objectives of vehicle safety. This exemption will afford additional time for Reliance to solve its compliance issue. The vehicles produced under a temporary exemption will be built in small quantities and the time that they spend on the highways no more than the other trailers granted an exemption. Thus, the exposure of other vehicles to the rear of a trailer lacking a rear impact guard is likely to be minimal.
In consideration of the foregoing, it is hereby found that to require compliance with Standard No. 224 would result in substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard, and that a temporary exemption would be in the public interest and consistent with the objectives of motor vehicle safety. Accordingly, Reliance Trailer Co, LLC is granted NHTSA Temporary Exemption No. 2001-6 from Federal Motor Vehicle Safety Standard No. 224, Rear Impact Protection, expiring October 1, 2003. The exemption covers only dump body trailers manufactured by the applicant.
49 U.S.C. 30113; delegation of authority at 49 CFR 1.50.
Customs Service, Department of the Treasury.
Customs broker license cancellation.
Pursuant to section 641 of the Tariff Act of 1930, as amended, (19 U.S.C. 1641) and the Customs Regulations (19 CFR 111.51), the following Customs broker license is canceled without prejudice.
Customs Service, Treasury.
General notice.
This notice advises the public of the quarterly Internal Revenue Service interest rates used to calculate interest on overdue accounts (underpayments) and refunds (overpayments) of Customs duties. For the quarter beginning October 1, 2001, the interest rates for overpayments will be 6 percent for corporations and 7 percent for non-corporations, and the interest rate for underpayments will be 7 percent. This notice is published for the convenience of the importing public and Customs personnel.
October 1, 2001.
Ronald Wyman, Accounting Services Division, Accounts Receivable Group, 6026 Lakeside Boulevard, Indianapolis, Indiana 46278, (317) 298-1200, extension 1349.
Pursuant to 19 U.S.C. 1505 and Treasury Decision 85-93, published in the
The interest rates are based on the short-term Federal rate and determined by the Internal Revenue Service (IRS) on behalf of the Secretary of the Treasury on a quarterly basis. The rates effective for a quarter are determined during the first-month period of the previous quarter.
In Revenue Ruling 2001-47 (
For the convenience of the importing public and Customs personnel the following list of IRS interest rates used, covering the period from before July of 1974 to date, to calculate interest on overdue accounts and refunds of Customs duties, is published in summary format.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995,
Written comments should be received on or before December 21, 2001 to be assured of consideration.
Direct all written comments to Garrick R. Shear, Internal Revenue Service, room 5244, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of this regulation should be directed to Allan Hopkins, (202) 622-6665, Internal Revenue Service, room 5244, 1111 Constitution Avenue NW., Washington, DC 20224.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing notice of proposed rulemaking and temporary regulation, REG-104924-98, Mark-to-Market Accounting for Dealers in Commodities and Traders in Securities or Commodities (§§ 1.475(e)-1 and 1.475 (f)-2).
Written comments should be received on or before December 21, 2001 to be assured of consideration.
Direct all written comments to Garrick R. Shear, Internal Revenue Service, room 5244, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of this regulation should be directed to Allan Hopkins, (202) 622-6665, Internal Revenue Service, room 5244, 1111 Constitution Avenue NW., Washington, DC 20224.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Summary presentation of final and interim rules.
This document summarizes the Federal Acquisition Regulation (FAR) rules agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council in this Federal Acquisition Circular (FAC) 2001-01. A companion document, the Small Entity Compliance Guide (SECG), follows this FAC. The FAC, including the SECG, is available via the Internet at
For effective dates and comment dates, see separate documents which follow.
The FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, (202) 501-4755, for information pertaining to status or publication schedules. For clarification of content, contact the analyst whose name appears in the table below in relation to each FAR case or subject area. Please cite FAC 2001-01 and specific FAR case number(s). Interested parties may also visit our Web site at
Summaries for each FAR rule follow. For the actual revisions and/or amendments to these FAR cases, refer to the specific item number and subject set forth in the documents following these item summaries.
Federal Acquisition Circular 2001-01 amends the FAR as specified below:
This final rule implements the Department of Labor's requirement to incorporate a current Davis-Bacon Act wage determination at the exercise of each option to extend the term of a contract for construction.
This final rule amends the FAR to clarify the definition of “commercial item.” The revised language will help contracting officers make commerciality determinations. The rule also alerts contracting officers to be aware of customary commercial terms and conditions that may affect the contract price when pricing commercial items. The rule also clarifies that Subpart 46.8, Contractor Liability for Loss of or Damage to Property of the Government, does not apply to acquisitions of commercial items. Contracting officers should use standard commercial practices instead of the policies in Subpart 46.8. Finally, the rule amends the clause at 52.212-4, Limitation of liability, to conform it to standard commercial practice.
This interim rule implements changes in the Office of Management and Budget's (OMB) Prompt Payment Act regulations at 5 CFR 1315 that implemented Section 1010 of the National Defense Authorization Act for Fiscal Year 2001. Those changes were published by OMB as an interim final rule and became effective on December 15, 2000 (65 FR 78403) and were applicable to all covered contracts awarded on or after December 15, 2000. Section 1010 of the National Defense Authorization Act for Fiscal Year 2001 requires agencies to pay an interest penalty, in accordance with regulations issued, whenever an interim payment under a cost-reimbursement contract for services is paid more than 30 days after the agency receives a proper invoice from a contractor. The Act does not permit payment of late payment penalty interest for any period prior to December 15, 2000.
This FAR amendment eliminates the prior policy and contract clause prohibitions on payment of late payment penalty interest for late interim finance payments under cost-reimbursement contracts for services. It adds new policy and contract clause coverage to provide for those penalty payments.
This final rule amends the FAR to implement statutory and regulatory changes relating to veterans’ employment opportunities and reporting. Most significantly for contracting officers, the rule amends the FAR to prohibit contracting officers from obligating or expending appropriated funds to enter into a contract with a contractor that has not met its veterans’ employment reporting requirements (VETS-100 Report). This prohibition does not apply to contracts for commercial items or contracts valued at or below the simplified acquisition threshold. The rule adds a new solicitation provision that requires each offeror to represent, by submission of its offer, that it is in compliance with the VETS-100 reporting requirements. The contracting officer may verify compliance by checking with the Department of Labor.
This interim rule amends the FAR to implement section 803 of the Small Business Reauthorization Act of 2000, part of the Consolidated Appropriations Act, 2001 (Pub. L. 106-554) that was enacted on December 21, 2000.
This rule requires a contractor that is required to submit a subcontracting plan to report as a separate subcontracting plan goal requirement, subcontracting
This final rule amends FAR Subpart 19.9 to implement Section 503(c) of the Small Business Reauthorization Act of 2000 (part of Public Law 106-554). Section 503(c) extends, for three additional years, the Very Small Business Pilot Program until September 30, 2003. The purpose of the program is to improve access to Government contract opportunities for concerns that are substantially below SBA's size standards by reserving certain acquisitions for competition among such concerns.
Federal Acquisition Circular (FAC) 2001-01 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration.
Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2001-01 is effective December 21, 2001, except for Items III and V, which are effective October 22, 2001.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to implement the requirement of Department of Labor (DoL) All Agency Memorandum No. 157 (AAM 157), as clarified in the
The FAR Secretariat, Room 4035, GS Building, Washington, DC, 20405, (202) 501-4755, for information pertaining to status or publication schedules. For clarification of content, contact Ms. Linda Nelson, Procurement Analyst, at (202) 501-1900. Please cite FAC 2001-01, FAR case 1997-613.
This final rule provides for incorporation of the current Davis-Bacon Act wage determination at the exercise of each option to extend the term of a contract for construction, or a contract that includes substantial and segregable construction work. Unlike the Service Contract Act, the Davis-Bacon Act and its implementing regulations do not state that new or revised wage determinations must be incorporated at the exercise of each contract option period.
On December 9, 1992, DoL issued AAM 157, which required incorporation of a current Davis-Bacon Act wage determination at the exercise of each option period in construction contracts containing options to extend the term of the contract. Following several years of controversy regarding the authority of the DoL to issue AAM 157, DoL Administrative Review Board confirmed on July 17,1997, the authority of the DoL Administrator's ruling that a current Davis-Bacon Act wage determination must be incorporated at the exercise of an option to extend the term of the contract. The Review Board also directed DoL to clarify the language of AAM 157 and to republish the memorandum in the
On December 3, 1999, DoD, GSA, and NASA published a proposed rule in the
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Regulatory Flexibility Act, 5 U.S.C. 601,
The FRFA is summarized as follows:
The final rule amends FAR Parts 1, 22, and 52 to implement the requirement of Department of Labor (DoL) All Agency Memorandum No. 157 (AAM 157), as clarified in the
1. No adjustment in contract price (because the option prices may include an amount to cover estimated increases);
2. Price adjustment based on a separately specified pricing method, such as application of a coefficient to an annually published unit pricing book incorporated at option exercise;
3. A percentage price adjustment, based on a published economic indicator; and
4. A price adjustment based on a specific calculation to reflect the annual increase or decrease in wages and fringe benefits as a result of incorporation of the new wage determination.
The last method, applying calculations similar to the calculations of price
Interested parties may obtain a copy of the FRFA from the FAR Secretariat.
DoD, GSA, and NASA published a proposed rule in the
The Paperwork Reduction Act applies. The FAR Secretariat submitted a request for approval of a revised information collection requirement concerning application of the Davis-Bacon Act to construction contracts with options to extend the term of the contract to the Office of Management and Budget (OMB). The burden associated with this rule has been approved under OMB Control No. 9000-0154.
Government procurement.
40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(a)
(b) * * * Once incorporated in a contract, a project wage determination normally remains effective for the life of the contract, unless the contracting officer exercises an option to extend the term of the contract (see 22.404-12).
(a) The contracting officer must incorporate only the appropriate wage determinations in solicitations and contracts and must designate the work to which each determination or part thereof applies. The contracting officer must not include project wage determinations in contracts or options other than those for which they are issued. When exercising an option to extend the term of a contract, the contracting officer must select the most current wage determination(s) from the same schedule(s) as the wage determination(s) incorporated into the contract.
(c) * * * Accordingly, agencies should submit requests to the Department of Labor at least 45 days (60 days if possible) before issuing the solicitation or exercising an option to extend the term of a contract.
(a)
(2) All project wage determination modifications expire on the same day as the original determination. The need to include a modification of a project wage determination in a solicitation is determined by the time of receipt of the modification by the contracting agency. Therefore, the contracting agency must annotate the modification of the project wage determination with the date and time immediately upon receipt.
(3) The need for inclusion of the modification of a general wage determination in a solicitation is determined by the publication date of the notice in the
(d) The following applies when modifying a contract to exercise an option to extend the term of a contract:
(1) A modified wage determination is effective if—
(i) The contracting agency receives a written action from the Department of Labor prior to exercise of the option, or within 45 days after submission of a wage determination request (22.404-3(c)), whichever is later; or
(ii) The Department of Labor publishes notice of modifications to general wage determinations in the
(2) If the contracting officer receives an effective modified wage determination either before or after execution of the contract modification to exercise the option, the contracting officer must modify the contract to incorporate the modified wage determination, and any changed wage rates, effective as of the date that the option to extend was effective.
Upon the Department of Labor's own initiative or at the request of the contracting agency, the Administrator, Wage and Hour Division, may correct any wage determination found to contain clerical errors. Such corrections will be effective immediately, and will apply to any solicitation or active contract. Before contract award, the contracting officer must follow the procedures in 22.404-5(b)(1) or (2)(i) or (ii) in sealed bidding, and the procedures in 22.404-5(c)(3) or (4) in negotiations. After contract award, the contracting officer must follow the procedures at 22.404-6(b)(5), except that for contract modifications to exercise an option to extend the term of the contract, the contracting officer must follow the procedures at 22.404-6(d)(2).
The contractor must keep a copy of the applicable wage determination (and any approved additional classifications) posted at the site of the work in a prominent place where the workers can easily see it. * * *
(a) Each time the contracting officer exercises an option to extend the term of a contract for construction, or a contract that includes substantial and segregable construction work, the contracting officer must modify the contract to incorporate the most current wage determination.
(b) If a contract with an option to extend the term of the contract has indefinite-delivery or indefinite-quantity construction requirements, the contracting officer must incorporate the wage determination incorporated into the contract at the exercise of the option into task orders issued during that option period. The wage determination will be effective for the complete period of performance of those task orders without further revision.
(c) The contracting officer must include in fixed-price contracts a clause that specifies one of the following methods, suitable to the interest of the Government, to provide an allowance for any increases or decreases in labor costs that result from the inclusion of the current wage determination at the exercise of an option to extend the term of the contract:
(1) The contracting officer may provide the offerors the opportunity to bid or propose separate prices for each option period. The contracting officer must not further adjust the contract price as a result of the incorporation of a new or revised wage determination at the exercise of each option to extend the term of the contract. Generally, this method is used in construction-only contracts (with options to extend the term) that are not expected to exceed a total of 3 years.
(2) The contracting officer may include in the contract a separately specified pricing method that permits an adjustment to the contract price or contract labor unit price at the exercise of each option to extend the term of the contract. At the time of option exercise, the contracting officer must incorporate a new wage determination into the contract, and must apply the specific pricing method to calculate the contract price adjustment. An example of a contract pricing method that the contracting officer might separately specify is incorporation in the solicitation and resulting contract of the pricing data from an annually published unit pricing book (
(3) The contracting officer may provide for a contract price adjustment based solely on a percentage rate determined by the contracting officer using a published economic indicator incorporated into the solicitation and resulting contract. At the exercise of each option to extend the term of the contract, the contracting officer will apply the percentage rate, based on the economic indicator, to the portion of the contract price or contract unit price designated in the contract clause as labor costs subject to the provisions of the Davis-Bacon Act. The contracting officer must insert 50 percent as the estimated portion of the contract price that is labor unless the contracting officer determines, prior to issuance of the solicitation, that a different percentage is more appropriate for a particular contract or requirement. This percentage adjustment to the designated labor costs must be the only adjustment made to cover increases in wages and/or benefits resulting from the incorporation of a new or revised wage determination at the exercise of the option.
(4) The contracting officer may provide a computation method to adjust the contract price to reflect the contractor's actual increase or decrease in wages and fringe benefits (combined) to the extent that the increase is made to comply with, or the decrease is voluntarily made by the contractor as a result of incorporation of, a new or revised wage determination at the exercise of the option to extend the term of the contract. Generally, this method is appropriate for use only if contract requirements are predominately services subject to the Service Contract Act and the construction requirements are substantial and segregable. The methods used to adjust the contract price for the service requirements and the construction requirements would be similar.
(e) In each option to extend the term of the contract, if any laborer or mechanic is to be employed during the option in a classification that is not listed (or no longer listed) on the wage determination incorporated in that option, the contracting officer must require that the contractor submit a request for conformance using the procedures noted in paragraphs (a) through (d) of this section.
(e) Insert the clause at 52.222-30, Davis-Bacon Act—Price Adjustment (None or Separately Specified Pricing Method), in solicitations and contracts if the contract is expected to be—
(1) A fixed-price contract subject to the Davis-Bacon Act that will contain option provisions by which the
(2) A cost-reimbursable type contract subject to the Davis-Bacon Act that will contain option provisions by which the contracting officer may extend the term of the contract.
(f) Insert the clause at 52.222-31, Davis-Bacon Act—Price Adjustment (Percentage Method), in solicitations and contracts if the contract is expected to be a fixed-price contract subject to the Davis-Bacon Act that will contain option provisions by which the contracting officer may extend the term of the contract, and the contracting officer determines the most appropriate contract price adjustment method is the method at 22.404-12(c)(3).
(g) Insert the clause at 52.222-32, Davis-Bacon Act—Price Adjustment (Actual Method), in solicitations and contracts if the contract is expected to be a fixed-price contract subject to the Davis-Bacon Act that will contain option provisions by which the contracting officer may extend the term of the contract, and the contracting officer determines the most appropriate method to establish contract price is the method at 22.404-12(c)(4).
(a) The wage determination issued under the Davis-Bacon Act by the Administrator, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, that is effective for an option to extend the term of the contract, will apply to that option period.
(b) The Contracting Officer will make no adjustment in contract price, other than provided for elsewhere in this contract, to cover any increases or decreases in wages and benefits as a result of—
(1) Incorporation of the Department of Labor's wage determination applicable at the exercise of the option to extend the term of the contract;
(2) Incorporation of a wage determination otherwise applied to the contract by operation of law; or
(3) An increase in wages and benefits resulting from any other requirement applicable to workers subject to the Davis-Bacon Act.
(a) The wage determination issued under the Davis-Bacon Act by the Administrator, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, that is effective for an option to extend the term of the contract, will apply to that option period.
(b) The Contracting Officer will adjust the portion of the contract price or contract unit price(s) containing the labor costs subject to the Davis-Bacon Act to provide for an increase in wages and fringe benefits at the exercise of each option to extend the term of the contract in accordance with the following procedures:
(1) The Contracting Officer has determined that the portion of the contract price or contract unit price(s) containing labor costs subject to the Davis-Bacon Act is ______ [
(2) The Contracting Officer will increase the portion of the contract price or contract unit price(s) containing the labor costs subject to the Davis-Bacon Act by the percentage rate published in ______[
(c) The Contracting Officer will make the price adjustment at the exercise of each option to extend the term of the contract. This adjustment is the only adjustment that the Contracting Officer will make to cover any increases in wages and benefits as a result of—
(1) Incorporation of the Department of Labor's wage determination applicable at the exercise of the option to extend the term of the contract;
(2) Incorporation of a wage determination otherwise applied to the contract by operation of law; or
(3) An increase in wages and benefits resulting from any other requirement applicable to workers subject to the Davis-Bacon Act.
(a) The wage determination issued under the Davis-Bacon Act by the Administrator, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, that is effective for an option to extend the term of the contract, will apply to that option period.
(b)(1) The Contractor states that if the prices in this contract contain an allowance for wage or benefit increases, such allowance will not be included in any request for contract price adjustment submitted under this clause.
(2) The Contractor shall provide with each request for contract price adjustment under this clause a statement that the prices in the contract do not include any allowance for any increased cost for which adjustment is being requested.
(c) The Contracting Officer will adjust the contract price or contract unit price labor rates to reflect the Contractor's actual increase or decrease in wages and fringe benefits to the extent that the increase is made to comply with, or the decrease is voluntarily made by the Contractor as a result of—
(1) Incorporation of the Department of Labor's Davis-Bacon Act wage determination applicable at the exercise of an option to extend the term of the contract; or
(2) Incorporation of a Davis-Bacon Act wage determination otherwise applied to the contract by operation of law.
(d) Any adjustment will be limited to increases or decreases in wages and fringe benefits as described in paragraph (c) of this clause, and the accompanying increases or decreases in social security and unemployment taxes and workers’ compensation insurance, but will not otherwise include any amount for general and administrative costs, overhead, or profit.
(e) The Contractor shall notify the Contracting Officer of any increase claimed under this clause within 30 days after receiving a revised wage determination unless this notification period is extended in writing by the Contracting Officer. The Contractor shall notify the Contracting Officer promptly of any decrease under this clause, but nothing in this clause precludes the Government from asserting a claim within the period permitted by law. The notice shall contain a statement of the amount claimed and any relevant supporting data, including payroll records that the Contracting Officer may reasonably require. Upon agreement of the parties, the Contracting Officer will modify the contract price or contract unit price in writing. The Contractor shall continue performance pending agreement on or determination of any such adjustment and its effective date.
(f) Contract price adjustment computations shall be computed as follows:
(1)
(2)
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to implement two statutory changes to the definition and application of “Commercial Items”: Section 803(a)(2)(D) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 to revise the definition of “commercial item” to provide specific guidance on the meaning and appropriate application of the terms “purposes other than government purposes” at 41 U.S.C. 403(12)(A); and Section 805 of the National Defense Authorization Act for Fiscal Year 2000 to clarify the definition of “commercial item” with respect to associated services.
The final rule also makes changes related to the acquisition of commercial items, including conforming the coverage regarding contractor liability for property loss or damage to commercial practice.
The FAR Secretariat, Room 4035, GS Building, Washington, DC, 20405, (202) 501-4755, for information pertaining to status or publication schedules. For clarification of content, contact Ms. Victoria Moss, Procurement Analyst, at (202) 501-4764. Please cite FAC 2001-01, FAR case 2000-303.
Federal Acquisition Regulation Part 12, Acquisition of Commercial Items, was developed to implement Title VIII of the Federal Acquisition Streamlining Act of 1994 (FASA) (Pub. L. 103-355). The regulations became effective on October 1, 1995.
The final rule revises—
• Paragraph (a) of the “commercial item” definition at FAR 2.101 and the corresponding definition in the clause at FAR 52.202-1, and FAR 12.102 to implement Section 803(a)(2)(D) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Pub. L. 105-261). Section 803(a)(2)(D) requires that the FAR be revised to provide specific guidance on the meaning and appropriate application of the term “purposes other than government purposes” in the definition of “commercial item” at 41 U.S.C. 403(12)(A);
• Paragraph (e) of the “commercial item” definition at FAR 2.101 to implement Section 805 of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. 106-65) (Clarification of Definition of Commercial Items with Respect to Associated Services). Section 805 clarifies that services ancillary to a commercial item, such as installation, maintenance, repair, training, and other support services, are considered a commercial service, regardless of whether the service is provided by the same vendor or at the same time as the item, if the service is provided contemporaneously to the general public under similar terms and conditions. The FAR clause at 52.202-1, Definitions, is similarly revised to make the new definition available to contractors and subcontractors;
• Paragraph (f) of the “commercial item” definition at FAR 2.101 to add definitions of “catalog price” and “market price” which provide guidance for identifying services that may be acquired under FAR Part 12;
• FAR 12.209 to add guidance concerning customary commercial terms and conditions related to the determination of price reasonableness when pricing commercial items;
• Subpart 46.8 to reconcile it with the coverage regarding contractor liability for property loss or damage with paragraph (p) in the clause at 52.212-4; and
• Paragraph (p) in the clause at 52.212-4 to conform to commercial practice (
DoD, GSA, and NASA published a proposed rule in the
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Government procurement.
40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(1) Any item, other than real property, that is of a type customarily used by the general public or by non-governmental entities for purposes other than governmental purposes, and—
(5) Installation services, maintenance services, repair services, training services, and other services if—
(i) Such services are procured for support of an item referred to in paragraph (1), (2), (3), or (4) of this definition, regardless of whether such services are provided by the same source or at the same time as the item; and
(ii) The source of such services provides similar services contemporaneously to the general public under terms and conditions similar to those offered to the Federal Government;
(6) Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed under standard commercial terms and conditions. This does not include services that are sold based on hourly rates without an established catalog or market price for a specific service performed. For purposes of these services—
(i)
(ii)
(d) The definition of commercial item in section 2.101 uses the phrase “purposes other than governmental purposes.” These purposes are those that are not unique to a government.
While the contracting officer must establish price reasonableness in accordance with 13.106-3, 14.408-2, or subpart 15.4, as applicable, the contracting officer should be aware of customary commercial terms and conditions when pricing commercial items. Commercial item prices are affected by factors that include, but are not limited to, speed of delivery, length and extent of warranty, limitations of seller's liability, quantities ordered, length of the performance period, and specific performance requirements. The contracting officer must ensure that contract terms, conditions, and prices are commensurate with the Government's need.
(a) * * * This subpart does not apply to commercial items.
(c) * * *
(1) Any item, other than real property, that is of a type customarily used by the general public or by non-governmental entities for purposes other than governmental purposes, and that—
(i) Has been sold, leased, or licensed to the general public; or
(ii) Has been offered for sale, lease, or license to the general public;
(5) Installation services, maintenance services, repair services, training services, and other services if—
(i) Such services are procured for support of an item referred to in paragraph (c)(1), (2), (3), or (4) of this definition, regardless of whether such services are provided by the same source or at the same time as the item; and
(ii) The source of such services provides similar services contemporaneously to the general public under terms and conditions similar to those offered to the Federal Government;
(6) Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed under standard commercial terms and conditions. This does not include services that are sold based on hourly rates without an established catalog or market price for a specific service performed. For purposes of these services—
(i)
(ii)
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Interim rule with request for comments.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on an interim rule amending the Federal Acquisition Regulation (FAR) to require agencies to pay an interest penalty whenever they make an interim payment under a cost-reimbursement contract for services more than 30 days after the agency receives a proper invoice from the contractor.
Submit written comments to: General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, Attn: Ms. Laurie Duarte, Washington, DC 20405. Submit electronic comments via the Internet to:
Please submit comments only and cite FAC 2001-01, FAR case 2000-308, in all correspondence related to this case.
The FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, (202) 501-4755, for information pertaining to status or publication schedules. For clarification of content, contact Mr. Jeremy Olson at (202) 501-3221. Please cite FAC 2001—01, FAR case 2000-308.
This FAR amendment implements changes in the Office of Management and Budget's (OMB) Prompt Payment Act regulations at 5 CFR part 1315 that implemented Section 1010 of the National Defense Authorization Act for Fiscal Year 2001. Those changes were published by OMB as an interim final rule and became effective on December 15, 2000 (65 FR 78403). Section 1010 requires agencies to pay an interest penalty, in accordance with regulations issued, whenever an interim payment under a cost-reimbursement contract for services is paid more than 30 days after the agency receives a proper invoice from a contractor. The Act does not permit payment of late payment interest penalty for any period prior to December 15, 2000.
This FAR amendment eliminates the prior policy and contract clause prohibitions on payment of late payment penalty interest for late interim finance payments under cost reimbursement contracts for services. It adds new policy and a contract clause, Alternate I to 52.232-25, to provide for those penalty payments. The policy and clause apply to all covered contracts awarded on or after December 15, 2000. OMB's regulation states that agencies, at their discretion, may apply the revisions made by Section 1010 to interim payment requests received under cost-reimbursement contracts for services awarded prior to December 15, 2000. Accordingly, agencies may apply the FAR changes made by this rule to contracts awarded prior to December 15, 2000, at their discretion provided no late payment interest penalty is paid for any period prior to December 15, 2000.
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The interim rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
A determination has been made under the authority of the Secretary of Defense (DoD), the Administrator of General Services (GSA), and the Administrator of the National Aeronautics and Space Administration (NASA) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because the amendments to the controlling regulation issued by OMB (5 CFR part 1315, 65 FR 78403) became effective on December 15, 2000. (Section 1010 of the National Defense Authorization Act for Fiscal Year 2001, which required OMB to issue the regulation, was effective December 15, 2000.) This amendment to the FAR is necessary to enable agencies to comply with OMB's interim final rule in the most effective and consistent manner possible.
Pursuant to Public Law 98-577 and FAR 1.501, the Councils will consider public comments received in response to this interim rule in the formation of the final rule. In addition, this interim rule will be revised, as necessary, to reflect any changes OMB may make to its regulations in promulgating a final rule.
Government procurement.
40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
2. In section 2.101, amend the definition “Proper invoice” by removing “32.905(e)” and adding “32.905(f)” in its place.
* * * Contract financing payments include advance payments, progress payments based on cost under the clause at 52.232-16, Progress Payments, progress payments based on a percentage or stage of completion (see 32.102(e)(1)) other than those made under the clause at 52.232-5, Payments Under Fixed-Price Construction Contracts, or the clause at 52.232-10, Payments Under Fixed-Price Architect-Engineer Contracts, and interim payments on cost-type contracts other than contracts for services. * * *
(1) This includes payments for partial deliveries that have been accepted by the Government and final cost or fee payments where amounts owed have been settled between the Government and the contractor.
(2) For purposes of this subpart, invoice payments also include all payments made under the clause at 52.232-5, Payments Under Fixed-Price Construction Contracts, the clause at 52.232-10, Payments Under Fixed-Price Architect-Engineer Contracts, or the clause at 52.232-25, Prompt Payment, when Alternate I is used for interim payments on cost-reimbursement contracts for services.
(3) Invoice payments do not include contract financing payments.
a. Removing from the introductory text of paragraph (a)“paragraphs (b), (c), and (d)” and adding “paragraphs (b) through (e)” in its place;
b. Redesignating paragraphs (e) through (j) as (f) through (k), respectively, and adding a new paragraph (e);
c. Revising the introductory text of newly designated paragraph (f); and
d. Revising the first sentence of the introductory text of newly designated paragraph (g) to read as follows:
(e)
(f)
(g)
(a) * * *
(5) In the case of interim payments on cost-reimbursement contracts for services, when payment is made more than 30 days after the designated billing office receives a proper invoice.
(c) * * *
(4) If the contract is a cost-reimbursement contract for services, use the clause with its Alternate I.
(d)
(1) Paragraphs (a)(2), (a)(3), (a)(4)(ii), (a)(4)(iii), and (a)(5)(i) do not apply;
(2) For purposes of computing late payment interest penalties that may apply, the due date for payment is the 30th day after the designated billing office receives a proper invoice; and
(3) The Contractor shall submit invoices for interim payments in accordance with paragraph (a) of FAR 52.216-7, Allowable Cost and Payment. If the invoice does not comply with contract requirements, it will be returned within 7 days after the date the designated billing office received the invoice.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to implement Sections 7 and 8 of the Veterans Employment Opportunities Act of 1998. Section 7 expands and improves veterans' employment emphasis under Federal contracts. Section 8 amends the veterans' employment reporting requirements. The rule also implements the Department of Labor's (DoL) Office of Federal Contract Compliance Programs (OFCCP) final rule amending regulations on Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Special Disabled Veterans and Veterans of the Vietnam Era, which clarifies DoL implementation of the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1972, as amended.
The FAR Secretariat, Room 4035, GS Building, Washington, DC, 20405, (202) 501-4755, for information pertaining to status or publication schedules. For clarification of content, contact Ms. Linda Nelson, Procurement Analyst, at (202) 501-1900. Please cite FAC 2001-01, FAR case 1998-614.
This final rule amends FAR 12.503, 13.005, 22.13, and the associated clauses and provisions at FAR Part 52 to implement recent statutory and regulatory changes relating to veterans' employment opportunities and reporting. Paragraph (a) of Section 7 of the Veterans' Employment Opportunities Act of 1998 (Pub. L. 105-339) amends 38 U.S.C.4212 in paragraph (a) to increase the threshold for covered contracts from $10,000 to $25,000, and expands applicability beyond “special disabled veterans and veterans of the Vietnam era” to include other eligible veterans (
Paragraph (b) of Section 7 amends 31 U.S.C. 1354 to specifically prohibit contracting officers from obligating or expending appropriated funds to enter into covered contracts with a contractor that does not meet veterans' employment reporting requirements (VETS-100 Report). In accordance with 41 U.S.C. 429 and 41 U.S.C. 430, the Councils have listed this law as inapplicable to acquisitions not greater than the simplified acquisition threshold and acquisitions of commercial items.
Paragraph (b) also requires the DoL to maintain a database on those contractors that have submitted the required VETS-100 Reports for the current reporting period. However, the database will not contain data on whether those contractors that did not submit reports were required to do so. The Councils have added a new provision by which the offeror represents that, if subject to the reporting requirements of 38 U.S.C. 4212(d), it has not failed to submit the most recent required VETS-100 Reports.
This rule lists 31 U.S.C. 1354(a) as not applicable to commercial item contracts and acquisitions not greater than the simplified acquisition threshold of $100,000 pursuant to FASA at 41 U.S.C. 429 and 41 U.S.C. 430. Accordingly, the representation in the provision at 52.222-38, Compliance with Veterans' Employment Reporting Requirements, is not applicable to commercial item acquisitions and acquisitions not greater than the simplified acquisition threshold of $100,000.
Section 8 of Public Law 105-339 amends 38 U.S.C. 4212(d)(1) to require reporting of the maximum number and the minimum number of employees during the period covered by the report. This requirement has been included in the clause at 52.222-37, which summarizes the DoL reporting requirements.
In conformance with the Veterans Employment Opportunities Act of 1998 and the OFCCP final rule, this final rule revises the clause at 52.222-35, adding definitions of “special disabled veterans,” “qualified special disabled veteran,” “other eligible veteran,” and “executive and top management,” and changes the definition of “veteran of the Vietnam Era.” The clause requires contractors to list all employment openings, except executive and top management, with the local employment service office. Contractors may fulfill the listing requirement by listing jobs electronically with America's Job Bank. The requirements for posting employment notices have also changed.
DoD, GSA, and NASA published a proposed rule in the
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements beyond those imposed by the DoL, for which DoL obtained the required approval from the Office of Management and Budget (OMB Control Numbers 1215-0072, 1215-0163, and 1293-0005) under 44 U.S.C. 3501,
Government procurement.
40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
United States * * *
(3) For use in subpart 22.13, see the definition at 22.1301.
(a) * * *
(5) 31 U.S.C. 1354(a), Limitation on use of appropriated funds for contracts with entities not meeting veterans employment reporting requirements (see 22.1302).
(a) * * *
(10) 31 U.S.C. 1354(a) (Limitation on use of appropriated funds for contracts with entities not meeting veterans employment reporting requirements).
This subpart prescribes policies and procedures for implementing the Vietnam Era Veterans' Readjustment Assistance Act of 1972 (38 U.S.C. 4211 and 4212) (the Act); Executive Order 11701, January 24, 1973 (3 CFR 1971-1975 Comp., p. 752); the regulations of the Secretary of Labor (41 CFR Part 60-250 and Part 61-250); and the Veterans Employment Opportunities Act of 1998, Public Law 105-339.
(a) Contractors and subcontractors, when entering into contracts or subcontracts subject to the Act, must—
(1) List all employment openings, with the appropriate local employment service office except for—
(i) Executive and top management positions;
(ii) Positions to be filled from within the contractor's organization; and
(iii) Positions lasting three days or less.
(2) Take affirmative action to employ, and advance in employment, qualified special disabled veterans, veterans of the Vietnam era, and other eligible veterans without discrimination based on their disability or veteran's status.
(b) Except for contracts for commercial items or contracts that do not exceed the simplified acquisition threshold, contracting officers must not obligate or expend funds appropriated for the agency for a fiscal year to enter into a contract for the procurement of personal property and nonpersonal services (including construction) with a contractor that has not submitted a required annual Form VETS-100, Federal Contractor Veterans' Employment Report (VETS-100 Report), with respect to the preceding fiscal year if the contractor was subject to the reporting requirements of 38 U.S.C. 4212(d) for that fiscal year.
(a) The Act applies to all contracts and subcontracts for personal property and nonpersonal services (including construction) of $25,000 or more except as waived by the Secretary of Labor.
(b) The requirements of the clause at 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans, in any contract with a State or local government (or any agency, instrumentality, or subdivision) do not apply to any agency, instrumentality, or subdivision of that government that does not participate in work on or under the contract.
(c) The Act requires submission of the VETS-100 Report in all cases where the contractor or subcontractor has received an award of $25,000 or more, except for awards to State and local governments, and foreign organizations where the workers are recruited outside of the United States.
To verify if a proposed contractor is current with its submission of the VETS-100 Report, the contracting officer may—
(a) Query the Department of Labor's VETS-100 Database via the Internet at
(b) Contact the VETS-100 Reporting Systems via e-mail at
(a) The Deputy Assistant Secretary for Federal Contract Compliance Programs, Department of Labor (Deputy Assistant Secretary of Labor), may waive any or all of the terms of the clause at 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans for—
(1) Any contract if a waiver is in the national interest; or
(2) Groups or categories of contracts if a waiver is in the national interest and it is—
(i) Impracticable to act on each request individually; and
(ii) Determined that the waiver will substantially contribute to convenience in administering the Act.
(b) The head of the agency may waive any requirement in this subpart when it is determined that the contract is essential to the national security, and that its award without complying with such requirements is necessary to the national security. Upon making such a determination, the head of the agency must notify the Deputy Assistant Secretary of Labor in writing within 30 days.
(c) The contracting officer must submit requests for waivers in accordance with agency procedures.
(d) The Deputy Assistant Secretary of Labor may withdraw an approved waiver for a specific contract or group of contracts to be awarded, when in the Deputy's judgment such action is necessary to achieve the purposes of the Act. The withdrawal does not apply to awarded contracts. For procurements entered into by sealed bidding, such withdrawal does not apply unless the withdrawal is made more than 10 calendar days before the date set for the opening of bids.
(a) The contracting officer must furnish to the contractor appropriate notices for posting when they are prescribed by the Deputy Assistant Secretary of Labor (
(b) The Act requires contractors and subcontractors to submit a report at least annually to the Secretary of Labor regarding employment of special disabled veterans, veterans of the Vietnam era, and other eligible veterans unless all of the terms of the clause at 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans, have been waived (see 22.1305). The contractor and subcontractor must use Form VETS-100, Federal Contractor Veterans” Employment Report, to submit the required reports.
If performance under the clause at 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans, may necessitate a revision of a collective bargaining agreement, the contracting officer must advise the affected labor unions that the Department of Labor will give them appropriate opportunity to present their views. However, neither the contracting officer nor any representative of the contracting officer may discuss with the contractor or any labor representative any aspect of the collective bargaining agreement.
Following agency procedures, the contracting office must forward any complaints received about the administration of the Act to the Veterans” Employment and Training Service of the Department of Labor, or through the local Veterans' Employment Representative or designee, at the local State employment office. The Deputy Assistant Secretary of Labor is responsible for investigating complaints.
The contracting officer must take necessary action as soon as possible upon notification by the appropriate agency official to implement any sanctions imposed on a contractor by the Department of Labor for violations of the clause at 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans. These sanctions (see 41 CFR 60-250.66) may include—
(a) Withholding payments;
(b) Termination or suspension of the contract; or
(c) Debarment of the contractor.
(a)(1) Insert the clause at 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans, in solicitations and contracts if the expected value is $25,000 or more, except when—
(i) Work is performed outside the United States by employees recruited outside the United States; or
(ii) The Deputy Assistant Secretary of Labor has waived, in accordance with 22.1305(a) or the head of the agency has waived, in accordance with 22.1305(b) all of the terms of the clause.
(2) If the Deputy Assistant Secretary of Labor or the head of the agency waives one or more (but not all) of the terms of the clause, use the basic clause with its Alternate I.
(b) Insert the clause at 52.222-37, Employment Reports on Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans, in solicitations and contracts containing the clause at 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans.
(c) Insert the provision at 52.222-38, Compliance with Veterans' Employment Reporting Requirements, in solicitations when it is anticipated the contract award will exceed the simplified acquisition threshold and the contract is not for acquisition of commercial items.
(b) * * *
______(13) 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (38 U.S.C. 4212).
______(15) 52.222-37, Employment Reports on Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (38 U.S.C. 4212).
(e) * * *
(2) 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (38 U.S.C. 4212);
(b) * * *
(1) * * *
(ii) 52.222-21, Prohibition of Segregated Facilities (FEB 1999) (E.O. 11246) (Applies to contracts over $10,000).
(iv) 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (DEC 2001) (38 U.S.C. 4212) (Applies to contracts of $25,000 or more).
(vi) 52.222-37, Employment Reports on Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (DEC 2001) (38 U.S.C. 4212) (Applies to contracts of $25,000 or more).
(a)
(1) Whose primary duty consists of the management of the enterprise in which the individual is employed or of a customarily recognized department or subdivision thereof;
(2) Who customarily and regularly directs the work of two or more other employees;
(3) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight;
(4) Who customarily and regularly exercises discretionary powers; and
(5) Who does not devote more than 20 percent or, in the case of an employee of a retail or service establishment, who does not devote more than 40 percent of total hours of work in the work week to activities that are not directly and closely related to the performance of the work described in paragraphs (1) through (4) of this definition. This paragraph (5) does not apply in the case of an employee who is in sole charge of an establishment or a physically separated branch establishment, or who owns at least a 20 percent interest in the enterprise in which the individual is employed.
(1) A veteran who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Department of Veterans Affairs for a disability—
(i) Rated at 30 percent or more; or
(ii) Rated at 10 or 20 percent in the case of a veteran who has been determined under 38 U.S.C. 3106 to have a serious employment handicap (
(2) A person who was discharged or released from active duty because of a service-connected disability.
(1) Served on active duty for a period of more than 180 days and was discharged or released from active duty with other than a dishonorable discharge, if any part of such active duty occurred—
(i) In the Republic of Vietnam between February 28, 1961, and May 7, 1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other cases; or
(2) Was discharged or released from active duty for a service-connected disability if any part of the active duty was performed—
(i) In the Republic of Vietnam between February 28, 1961, and May 7, 1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other cases.
(b)
(i) Recruitment, advertising, and job application procedures;
(ii) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff and rehiring;
(iii) Rate of pay or any other form of compensation and changes in compensation;
(iv) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;
(v) Leaves of absence, sick leave, or any other leave;
(vi) Fringe benefits available by virtue of employment, whether or not administered by the Contractor;
(vii) Selection and financial support for training, including apprenticeship, and on-the-job training under 38 U.S.C. 3687, professional meetings, conferences, and other related activities, and selection for leaves of absence to pursue training;
(viii) Activities sponsored by the Contractor including social or recreational programs; and
(ix) Any other term, condition, or privilege of employment.
(2) The Contractor shall comply with the rules, regulations, and relevant orders of the Secretary of Labor issued under the Vietnam Era Veterans' Readjustment Assistance Act of 1972 (the Act), as amended (38 U.S.C. 4211 and 4212).
(c)
(2) The Contractor shall make the listing of employment openings with the local employment service office at least concurrently with using any other recruitment source or effort and shall involve the normal obligations of placing a bona fide job order, including accepting referrals of veterans and nonveterans. This listing of employment openings does not require hiring any particular job applicant or hiring from any particular group of job applicants and is not intended to relieve the Contractor from any requirements of Executive orders or regulations concerning nondiscrimination in employment.
(3) Whenever the Contractor becomes contractually bound to the listing terms of this clause, it shall advise the State public employment agency in each State where it
(d)
(e)
(2) The employment notices shall—
(i) State the rights of applicants and employees as well as the Contractor's obligation under the law to take affirmative action to employ and advance in employment qualified employees and applicants who are special disabled veterans, veterans of the Vietnam era, and other eligible veterans; and
(ii) Be in a form prescribed by the Deputy Assistant Secretary for Federal Contract Compliance Programs, Department of Labor (Deputy Assistant Secretary of Labor), and provided by or through the Contracting Officer.
(3) The Contractor shall ensure that applicants or employees who are special disabled veterans are informed of the contents of the notice (
(4) The Contractor shall notify each labor union or representative of workers with which it has a collective bargaining agreement, or other contract understanding, that the Contractor is bound by the terms of the Act and is committed to take affirmative action to employ, and advance in employment, qualified special disabled veterans, veterans of the Vietnam era, and other eligible veterans.
(f)
(g)
(a) Unless the Contractor is a State or local government agency, the Contractor shall report at least annually, as required by the Secretary of Labor, on—
(1) The number of special disabled veterans, the number of veterans of the Vietnam era, and other eligible veterans in the workforce of the Contractor by job category and hiring location; and
(2) The total number of new employees hired during the period covered by the report, and of the total, the number of special disabled veterans, the number of veterans of the Vietnam era, and the number of other eligible veterans; and
(3) The maximum number and the minimum number of employees of the Contractor during the period covered by the report.
(b) The Contractor shall report the above items by completing the Form VETS-100, entitled “Federal Contractor Veterans” Employment Report (VETS-100 Report)”.
(c) The Contractor shall submit VETS-100 Reports no later than September 30 of each year beginning September 30, 1988.
(d) The employment activity report required by paragraph (a)(2) of this clause shall reflect total hires during the most recent 12-month period as of the ending date selected for the employment profile report required by paragraph (a)(1) of this clause. Contractors may select an ending date—
(1) As of the end of any pay period between July 1 and August 31 of the year the report is due; or
(2) As of December 31, if the Contractor has prior written approval from the Equal Employment Opportunity Commission to do so for purposes of submitting the Employer Information Report EEO-1 (Standard Form 100).
(e) The Contractor shall base the count of veterans reported according to paragraph (a) of this clause on voluntary disclosure. Each Contractor subject to the reporting requirements at 38 U.S.C. 4212 shall invite all special disabled veterans, veterans of the Vietnam era, and other eligible veterans who wish to benefit under the affirmative action program at 38 U.S.C. 4212 to identify themselves to the Contractor. The invitation shall state that—
(1) The information is voluntarily provided;
(2) The information will be kept confidential;
(3) Disclosure or refusal to provide the information will not subject the applicant or employee to any adverse treatment; and
(4) The information will be used only in accordance with the regulations promulgated under 38 U.S.C. 4212.
(f) The Contractor shall insert the terms of this clause in all subcontracts or purchase orders of $25,000 or more unless exempted by rules, regulations, or orders of the Secretary of Labor.
By submission of its offer, the offeror represents that, if it is subject to the reporting requirements of 38 U.S.C. 4212(d) (
(c)(1) The Contractor shall insert the following clauses in subcontracts for commercial items:
(iii) 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (Dec 2001) (38 U.S.C. 4212(a));
Department of Defense (DoD), General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA).
Interim rule with request for comments.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on an interim rule to amend the Federal Acquisition Regulation (FAR) to implement section 803 of the Small Business Reauthorization Act of 2000, part of the Consolidated Appropriations Act, 2001. Section 803 amended section 8(d) of the Small Business Act by adding an additional subcontracting plan goal requirement for service-disabled veteran-owned small business concerns.
Submit written comments to: General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW., Room 4035, Attn: Ms. Laurie Duarte, Washington, DC 20405.
Submit electronic comments via the Internet to:
Please submit comments only and cite FAC 2001-01, FAR case 2000-302, in all correspondence related to this case.
The FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, (202) 501-4755, for information pertaining to status or publication schedules. For clarification of content, contact Ms. Rhonda Cundiff at (202) 501-0044. Please cite FAR case 2000-302.
This interim rule amends the FAR to implement section 803 of the Small Business Reauthorization Act of 2000, part of the Consolidated Appropriations Act, 2001 (Pub. L. 106-554).
The Veterans Entrepreneurship and Small Business Development Act of 1999 (Pub. L. 106-50) established new assistance programs for veterans and service-disabled veterans who own and operate small businesses. Specifically, the Act—
• Defines the terms “small business concern owned and controlled by veterans” and “small business concern owned and controlled by service-disabled veterans”;
• Establishes that veteran-owned and service-disabled veteran-owned small businesses be afforded maximum practical opportunity to participate in the performance of contracts and subcontracts awarded by any Federal agency;
• Establishes a requirement to include a goal for veteran-owned small businesses in subcontracting plans under FAR 52.219-9;
• Establishes a 3 percent Governmentwide goal (based on the total value of all prime contract and subcontract awards) for participation by service-disabled veteran-owned small businesses; and
• Adds data collection requirements for prime and subcontract awards to veteran-owned small businesses and service disabled veteran-owned small business concerns.
DoD, GSA, and NASA published an interim FAR rule in the
However, section 803 of the Small Business Reauthorization Act of 2000, part of the Consolidated Appropriations Act, 2001 (Pub. L. 106-554) was subsequently enacted on December 21, 2000. Section 803 amended section 8(d) of the Small Business Act (15 U.S.C 637(d)) by adding an additional subcontracting plan goal requirement for service-disabled veteran-owned small business concerns. This interim rule adds the new statutory subcontracting plan goal requirement for service-disabled veteran-owned small business concerns.
Public comments are specifically sought on the service-disabled veteran-owned small business subcontracting plan goal changes. Since public comments received in response to the first interim rule have already been addressed, only comments on the issue unique to the second interim rule need to be submitted.
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This is not a major rule under 5 U.S.C. 804.
The changes may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
This interim rule amends the Federal Acquisition Regulation to implement section 803 of the Small Business Reauthorization Act of 2000, part of the Consolidated Appropriations Act, 2001 (Pub. L. 106-554).
The FAR Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. Interested parties may obtain a copy from the FAR Secretariat. The Councils will consider comments from small entities concerning the affected FAR Parts 19, 52, and 53 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C 601,
The Paperwork Reduction Act (Pub. L. 104-13) applies; however, this interim rule only requires contractors to report, as a separate item, information already collected and reported under OMB Control Numbers 9000-0006 and 9000-0007. The impact on the information collection hours of these OMB clearances is so small as to be within the estimating parameters of these clearances. Therefore, the clearances have not been changed.
A determination has been made under authority of the Secretary of Defense (DoD), the Administrator of General Services (GSA), and the Administrator of the National Aeronautics and Space Administration (NASA) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary in order to implement section 803 of the Small Business Reauthorization Act of 2000, part of the Consolidated Appropriations Act, 2001 (Pub. L. 106-554). However, pursuant to Pub. L. 98-577 and FAR 1.501, the Councils will consider public comments received in response to this interim rule in formulating the final rule.
Government procurement.
40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
The revised and added text reads as follows:
(d) * * *
(2) * * *
(iv) Total dollars planned to be subcontracted to service-disabled veteran-owned small business;
(3) * * *
(iii) Service-disabled veteran-owned small business concerns;
(6) * * *
(iii) Service-disabled veteran-owned small business concerns;
(11) * * *
(iii) * * *
(C) Whether service-disabled veteran-owned small business concerns were solicited and, if not, why not;
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) by extending, for three additional years, the Very Small Business Pilot Program until September 30, 2003. This rule implements section 503(c) of the Small Business Reauthorization Act of 2000 (part of Public Law 106-554).
The FAR Secretariat, Room 4035, GS Building, Washington, DC, 20405, at (202) 501-4755 for information pertaining to status or publication schedules. For clarification of content, contact Ms. Rhonda Cundiff, Procurement Analyst, at (202) 501-0044. Please cite FAC 2001-01, FAR case 2001-001
This final rule amends paragraph (c) of section 19.901 to implement section 503(c) of the Small Business Reauthorization Act of 2000 (part of Public Law 106-554). Section 503(c) amends Section 304 of Public Law 103-403 (15 U.S.C. 644
The final rule does not constitute a significant revision within the meaning of FAR 1.501 and Public Law 98-577, and publication for public comment is not required. However, the Councils will consider comments from small entities concerning the affected FAR Part in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the rule does not impose any new information collection requirements that require Office of Management and Budget approval under 44 U.S.C. 3501,
Government Procurement.
40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Small Entity Compliance Guide.
This document is issued under the joint authority of the Secretary of Defense, the Administrator of General Services and the Administrator for the National Aeronautics and Space Administration. This
Laurie Duarte, FAR Secretariat, (202) 501-4225. For clarification of content, contact the analyst whose name appears in the table below.
This final rule implements the Department of Labor's requirement to incorporate a current Davis-Bacon Act wage determination at the exercise of each option to extend the term of a contract for construction.
This final rule amends the FAR to clarify the definition of “commercial item.” The revised language will help contracting officers make commerciality determinations. The rule also alerts contracting officers to be aware of customary commercial terms and conditions that may affect the contract price when pricing commercial items. The rule also clarifies that subpart 46.8, Contractor Liability for Loss of or Damage to Property of the Government, does not apply to acquisitions of commercial items. Contracting officers should use standard commercial practices instead of the policies in subpart 46.8. Finally, the rule amends the clause at 52.212-4, Limitation of liability, to conform it to standard commercial practice.
This interim rule implements changes in the Office of Management and Budget's (OMB) Prompt Payment Act regulations at 5 CFR 1315 that implemented Section 1010 of the National Defense Authorization Act for Fiscal Year 2001. Those changes were published by OMB as an interim final rule and became effective on December 15, 2000 (65 FR 78403) and were applicable to all covered contracts awarded on or after December 15, 2000. Section 1010 of the National Defense Authorization Act for Fiscal Year 2001 requires agencies to pay an interest penalty, in accordance with regulations issued, whenever an interim payment under a cost-reimbursement contract for services is paid more than 30 days after the agency receives a proper invoice from a contractor. The Act does not permit payment of late payment penalty interest for any period prior to December 15, 2000.
This FAR amendment eliminates the prior policy and contract clause prohibitions on payment of late payment penalty interest for late interim finance payments under cost-reimbursement contracts for services. It adds new policy and contract clause coverage to provide for those penalty payments.
This final rule amends the FAR to implement statutory and regulatory changes relating to veterans’ employment opportunities and reporting. Most significantly for contracting officers, the rule amends the FAR to prohibit contracting officers from obligating or expending appropriated funds to enter into a contract with a contractor that has not met its veterans’ employment reporting requirements (VETS—100 Report). This prohibition does not apply to contracts for commercial items or contracts valued at or below the simplified acquisition threshold. The rule adds a new solicitation provision that requires each offeror to represent, by submission of its offer, that it is in compliance with the VETS—100 reporting requirements. The contracting officer may verify compliance by checking with the Department of Labor.
This interim rule amends the FAR to implement section 803 of the Small Business Reauthorization Act of 2000, part of the Consolidated Appropriations Act, 2001 (Pub. L. 106-554) that was enacted on December 21, 2000.
This rule requires a contractor that is required to submit a subcontracting plan to report as a separate subcontracting plan goal requirement, subcontracting activity pertaining to service-disabled veteran-owned small business concerns. The rule also changes the Standard Form (SF) 294, “Subcontracting Report for Individual Contracts,” and the SF 295, “Summary Subcontract Report,” to capture this category of information for the contracting officer.
This final rule amends FAR Subpart 19.9 to implement Section 503(c) of the Small Business Reauthorization Act of 2000 (part of Public Law 106-554). Section 503(c) extends, for three additional years, the Very Small Business Pilot Program until September 30, 2003. The purpose of the program is to improve access to Government contract opportunities for concerns that are substantially below SBA's size standards by reserving certain acquisitions for competition among such concerns.